IBRAHIM v. STATE (2022)

IBRAHIM v. STATE

(2022)LCN/16829(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Monday, January 31, 2022

CA/K/79A/C/2020

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

ABDULLAHI IBRAHIM APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE PRESUMPTION OF INNOCENCE OF AN ACCUSED PERSON UNTIL PROVEN GUILTY

Under the adversorial criminal legal system of the Country Nigeria, an accused person, in the shoes of the Appellant herein, is presumed innocent until proved guilty by a Court of competent jurisdiction. The presumption of innocence therefore places a burden on the prosecution to prove an offence charged beyond reasonable doubt in accordance with the provision of Section 135 of the Evidence Act, 2011. In the process, the prosecution has to prove all the ingredients of the offence charged, by providing vital evidence of materials and witnesses at the proceedings.

Hence, in order to ground a conviction for the offense of armed robbery, the prosecution must prove, beyond reasonable doubt, the following ingredients: (i) That there was a robbery or series of robberies; (ii) That the robberies were armed robberies or each robbery was an armed robbery and (iii) That the accused was the robber or one of those who took part in the armed robbery or series of robberies. See amongst an army of judicial authorities, the cases of: (1) Bozin v. The State (1985) 2 NWLR (Pt. 8) p. 465; (2) Bakare v. The State (1987) 1 NWLR (Pt. 52) p. 579; (3) Bello v. The State (2007) 10 NWLR (Pt. 1043) p. 564; (4) The State v. Salawu (2011) 8 NWLR (Pt. 1279) p. 580; (5) Shofolahan v. The State (2013) 49 WRN p. 172 and (6) Kekong v. State (2017) LPELR-42343 (SC). The pieces of evidence which need to be before the Court in order to establish the offences of conspiracy and armed robbery just like any criminal offence can be classified into three viz: (i) direct evidence of an eye witness; (ii) circumstantial evidence and (iii) confessional statement of an accused person. See the cases of: (1) Onyenye v. State (2012) 15 NWLR (Pt. 1324) p. 586; (2) Okiemute v. State (2016) LPELR-40639 (SC); (3) Essien v. State (2017) LPELR-42762 (SC) and (4) Ekpo v. State (2018) LPELR-43843 (SC). PER AKINBAMI, J.C.A.

THE STANDARD OF PROOF IN AN OFFENCE OF ARMED ROBBERY

Although the standard of proof required to ground a conviction for the offences of conspiracy and armed robbery is proof beyond reasonable doubt, proof beyond reasonable doubt does not mean proof beyond a shadow of doubt, it simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness. On the other hand, where on the totality of the evidence adduced, a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof with which the law clothed it, thereby entitling the accused person to the benefit of the doubt and resulting in his discharge and acquittal. PER AKINBAMI, J.C.A.

DEFINITION OF THE OFFENCE OF ARMED ROBBERY

Section 11 of the Act defines robbery as meaning stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain it or retain the thing stolen or retained. Therefore, armed robbery within the context of the Act simply means, robbery while armed with an offensive weapon. In the case of Ibrahim v. State (2014) 3 NWLR (Pt. 1394) p. 305, the Supreme Court per Ariwoola, JSC on the point stated that:
“Generally, robbery means the illegal taking of property from the person of another or in the person’s presence by violence or intimidation. While armed robbery is robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used”. PER AKINBAMI, J.C.A.

WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT

An accused person can be convicted solely on his confessional statement if made voluntarily and it is fully consistent and probable. It is however desirable to have outside the confession some evidence be it slight of circumstances which make it probable that the confession is true. See Alo v. State (2015) 2 SCNJ (Pt 11) 405.

The lower Court in my view erred in law, when it held that the appellant adopted the confessional statements of the co-defendants because they corroborated the confession of the Appellant. In the case of State v Gwangwan (2015) 13 NWLR (Pt 1477) 600 at 625 paras C-D, the Supreme Court held as follows in respect of similar circumstances:
“Where an accused person makes a confessional statement as to his participation in a crime, he is not confessing for his accomplices. An accused person’s confession is only evidence against him and not against co-accused persons and it is a misdirection which may lead to the quashing of the conviction. However, a confessional statement of a co-accused can only be used against an accused person if he voluntarily adopts it. In the instant case, the use of statements of co-accused persons against the respondent without him adopting them as his was unlawful and had a vitiating effect on his conviction by the Court.” PER AKINBAMI, J.C.A.

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Kaduna State holden at Kaduna Judicial Division (hereinafter referred to as the trial Court) delivered on the 5th day of October, 2017 per B. I. Wali, J. in Charge No. KTH/27c/2016. At the trial Court, the Appellant, as the accused person, was arraigned on a one-count charge of armed robbery punishable under Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Vol. 14, Laws of the Federation of Nigeria, 2004. Sequel to the Appellant’s plea of not guilty, the case proceeded to trial. During the trial, the Respondent, (as the prosecution), in its bid to prove the charge against the Appellant called seven witnesses and tendered exhibits in evidence. On his part and in defence of the charge against him, the Appellant gave evidence but he did not either tender any document in evidence or call any additional witness. At the close of trial, the trial Court was persuaded by the Respondents case, it therefore convicted the Appellant as charged and per the enrollment of its judgment sentenced him to twenty one years imprisonment.

The Appellant being dissatisfied with the decision of the trial Court, lodged this appeal against it to the Court vide the Amended Notice of Appeal dated and filed on the 16th of June, 2021 but deemed properly filed on the 27th of September, 2021 and solicited for:
1. An order setting aside the conviction and sentence of the Appellant by the High Court of Katsina State on 5th October, 2017.
2. An order discharging and acquitting the Appellant of the offence of armed robbery.

For ease of reference and good understanding, the three grounds of appeal contained in the notice of appeal are hereunder set out, minus their particulars, as follows:
Ground One
That the learned trial judge erred in law and this occasioned a miscarriage of justice when he relied on the alleged confessional statement of the Appellant to convict the Appellant in spite of the Appellant’s denial of ever making the confessional statement, the absence of materials in the confessional statement as to the commission of the offence and the absence of corroborative evidence outside the confession.
Ground Two
The learned trial judge erred, in relation to the Appellant herein, when he held that the Appellant adopted the confessional statements of the other defendants and proceeded to convict the Appellant on the basis of the same.
Ground Three
The decision of the learned trial judge cannot be supported having regard to the weight of evidence and the elements for establishing the offence.

In due obedience to the relevant provisions of the Rules of this Court, learned counsel for the respective parties filed and exchanged the respective party’s briefs of argument in substantiation of their opposing stances in the appeal. The Appellant’s counsel, Mrs. Olujoke Aliu of the law firm of Aluko & Oyebode & Co., settled the Appellant’s Brief of Argument dated the 28th of April, 2021 and filed on the 6th of June, 2021. The lone issue crafted for determination in the brief read thus:
“Whether having regard to the evidence led at the lower Court there was reasonable doubt as to the Appellant’s participation in the alleged robbery. (Grounds 1,2,3).”

Shed Wada Abdullahi Esq., represented the Respondent and settled the Respondent’s Brief of Argument dated and filed on the 2nd of August, 2021. In response to the Respondent’s brief, the Appellant’s counsel further submitted an Appellant’s Reply Brief, dated and filed on the 11th of October, 2021, deemed properly filed on 3rd November, 2021. At the hearing of this appeal on the 3rd of November, 2021, the Appellant’s counsel, Mrs. Olujoke Aliu identified and adopted the two briefs of the Appellant and relied on the submissions contained therein in urging upon this Court to allow the appeal, set aside the judgment of the trial Court, discharge and acquit the Appellant. The Respondent’s counsel Mr. Sheu Wada Abdullahi adopted the Respondent’s brief, he also distilled one issue for determination, and relied on the submissions therein in urging this Court to dismiss this appeal. I have examined the two sets of issues redacted by the party’s counsel for the determination of the appeal. I consider the sole issue framed by the Appellant’s counsel concise and apposite for the resolution of the Appellant’s grouse about the judgment of the trial Court under review. I will therefore adopt the sole issue in the determination of the appeal.

SOLE ISSUE
“Whether having regard to the evidence led at the lower Court there was reasonable doubt as to the Appellant’s participation in the alleged robbery .”

THE SUMMARY OF THE SUBMISSIONS OF APPELLANT’s COUNSEL
The learned counsel opined that the trial Court did not exercise due caution in convicting the Appellant for the offense charged based mainly on his extra-judicial statement. For it is trite that though the Court can convict only on the extrajudicial confessional statement of an accused person, credible evidence outside the confessional statement is necessary to ground a conviction on a denied or retracted confessional statement. Hence, in the case at hand, when the Appellant retracted his confessional statement, the trial Court was under an obligation to look for evidence which in particular material corroborates the confessional statement before convicting on it. Reference was made to the case of: (1) Nwaebonyi v The State (1994)4 NWLR (Part 343) 138 at 157. According to Counsel, the corroborative evidence relied upon by the Court to convict the Appellant was not credible but merely a fabrication to nail down the Appellant to the commission of the offences for which he stood trial. There was nothing outside the Appellant’s confessional statement to show that it was true. In fact, all the adduced evidence show that the Appellant was merely linked with the commission of the offences on mere suspicion. The Respondent called seven witnesses in an attempt to prove the guilt of the Appellant. PW1 and PW2 were present at the scene of the alleged robbery and claimed that they were robbed of valuables. The witnesses of the Respondent gave contradictory evidence in the narration of what transpired on the day the alleged crime was perpetrated. PW1 and PW2 suggested that the robbers were two, while the case of the prosecution was that on 5th September, 2016, one PW1, was robbed by four masked individuals armed with sticks, machetes, horns etc. PW5 stated that the Report given to the police was that an unknown gang of armed robbers robbed PW1. PW1 gave evidence-in chief that on 5th September, 2016 around 3am, he was suddenly woken up from his sleep by a sound of beating with a stick on his leg, and he noticed two people standing in front of him, their faces covered with turbans. They were also holding matchet, sticks, and horns and torchlight. They requested for money, which he gave them N203,000:00 and 25 pounds of sera. He reported the incident at the police station in Dankaba. Later in the day, he heard that the suspects had been arrested. He met four accused persons who were later taken with him to the Kaita Police Station from where they were all taken to State C.I.D. Katsina. The identity of the victim of the purported road was put in issue by Appellants counsel in that the Exhibits A and B (the English and Hausa versions of Appellant’s alleged confessional statement tendered by the prosecution) state that the victim of the robbery is one Gambo, while the victim who testified as PW1, gave his name as Gambo Mallam Ya’u. The confessional statement of another defendant DW2 described the victim of the robbery as Usher while the charge described the victim as Gambo Ya’u. There was nothing on record explaining the connection between Usher and Gambo Ya’u or Gambo Mallam Ya’u. There were also inconsistencies as to the amount stolen, the amount recovered, the location of the robbery etc. PW1, same day rushed to the police station, where he met the arrested individuals being beaten by the police. He was unable to identify the individuals who robbed him. None of the policemen from the Katsina State Police CID who testified as PW3, PW4, PW5 and PW6 gave the date when the Appellant and the other accused persons were arrested. Apart from stating that they obtained the confessional statements of the defendants and recovered the weapons used for the commission of the crime PW3, PW4, PW5 and PW6 gave no explanation as to how the police came to suspect the Appellant, especially as PW1 and PW2 did not identify any assailant, provide any description or mention anybody’s name and the Appellant and other accused were not arrested at the scene of the robbery. The accused persons testified for themselves as DW1, DW2, DW3 and DW4 respectively. They all retracted their respective confessional statements. The appellant was beaten and forced to thumbprint his alleged confessional statement. Even the prosecution gave evidence that the Appellant was beaten by the police at the station. The trial Court in convicting the Appellant relied heavily on the confessional statement of the Appellant and those of the other defendants. Though the alleged confession of the Appellant is that it contains no confession as to the commission of the crime for which he was charged. The Appellant cannot be said to have adopted confessional statement of the other defendants, when he did not confess to the Robbery of Gambo Ya’u in his alleged confessional statement, but rather stated that he was not involved in the same. The confessional statements of the co-defendants and the confessional statement of the appellant and those of the other defendants were not credible, lacked independent corroboration and should not have been given such weight as to ground the conviction of the appellant. There were material inconsistencies in the case of the prosecution which should have been resolved against the prosecution and resulted in the acquittal of the Appellant. Prosecution failed to establish the offence of armed robbery against the Appellant beyond reasonable doubt. The inability of the eyewitness to identify the armed robbers is particularly important because establishing the offence of armed robbery requires not only that the prosecution establishes that there was a robbery which was carried on with offensive weapons, but also that the defendants charged carried out or participated in the said robbery. PW5, one of the investigating police officers, stated that the perpetrators of the robbery were described as an “unknown gang of armed robbers”. In a criminal charge, nexus must be established between the accused person and the criminal act allegedly committed. On this stance, reliance was placed on the case of Ogbaga v The State (2016) LPELR-40950 (CA). In an attempt to connect the Appellant to the alleged robbery, the prosecution relied on (a) the alleged confessional statement of the Appellant (b) the exhibits tendered by PW7, which consisted of some offensive weapons that were allegedly used during the robbery and found in the homes of the defendants. Neither of these were reliable. They should not have been accorded such weight as to secure a conviction of the Appellant. On this stance reliance was placed on Nwaebonyi v. The State (1994) 4NWLR (Part 343) 138 at 157. The exhibits tendered by PW7, could not provide the required corrobative evidence required outside of the confession. The charge states that the armed robbery occurred on the 5th day of September, 2016. PW1 and PW2, also alleged in their testimonies that the armed robbery occurred on the 5th day of September, 2016. PW7, testified and tendered exhibits used during the commission of the robbery and stated:
“On 14/8/2016, one inspector Adamu Musa attached to Anti-Robbery Section of SCID Katsina brought some exhibits in connection with this case against one Abdullahi lbrahim and 3 Ors for registration, l registered them and gave them numbers, they are as follows…”

The date of the registration of the exhibits by PW7 is particularly telling. On the evidence of PW7, they were registered in August 2016 i.e on 14/8/2016. This raises a critical question as to how exhibits that were allegedly used during an armed robbery operation on 5th September, 2016 could have been registered with an exhibit keeper in August, 2016, about three weeks before the alleged robbery? The exhibits could not, and were not at all used during or connected to the robbery that allegedly occurred on 5th September, 2016. The trial Court relied on the exhibits, and found that they strengthened he case of the prosecution and supported the confessional statements and the Court proceeded to convict the Appellant on the basis of the same. The lower Court should not have attached any weight at all to the exhibits or be persuaded by the same. The confessional statement of the appellant, did not contain any confession as to the crime for which the Appellant was charged and tried, and the Appellant should not have been convicted on the confession, or those of the co-defendants, as he did not adopt the same. The charge with which the Appellant was tried reads: “That you …(4) Danlami Sani all of Dankama village Kaita Local Government Area of Katsina State, on or about the 5th day of September, 2016 at about 03:00hrs at Dankama village Kaita LGA while armed with dangerous weapons…broke into the House of one Gambo Ya’u of the same address while he slept, woke him up and threatened to kill him and demanded for money and robbed him of the sum of N230,000:00 and 25,000CF. A foreign currency, thereby committed an offence punishable under Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provision) Act Cap R II Laws of the Federation of Nigeria 2004. ”An examination of the alleged confessional statement of the Appellant and the English translation of the same show clearly that the Appellant did not confess to participating in the alleged offence. In relation to this offence, the Appellant stated:
“l did not go to Gambo’s house. I did not involved in the (scene) and l did not know anything about Alhaji Murtala…”

It was also contended for the Appellant that, the alleged confessional statement of the Appellant was not corroborated as wrongly held by the trial Court. The evidence of PW1, and PW2 is not sufficient corroboration to link the Appellant with the commission of the offences when juxtaposed with the unchallenged evidence of the Appellant that he was elsewhere at the time the crime was allegedly committed. The lower Court was wrong when in relation to the Appellant, it held at page 71 of the record of appeal that the Appellant adopted the confessional statements of co-defendants because they corroborated the confession of the Appellant. Since the Appellant made no confession as to the crime for which he was charged and tried, he should not have been deemed as having adopted the confessional statements of other defendants. The following cases were cited State v Gwangwan (2015) 13 NWLR (part 1477) 600, Ajaegbo v State (2018) 11 NWLR (part 1631) 484, Babatunde v State (2018) 17 NWLR (Pt. 1649) 566-567. Learned counsel reiterated, that in the judgment under appeal, the Appellant was clearly not convicted on his confessional statement alone, and he could not have been on proper evaluation of the evidence, as his alleged confessional statement denied his participation in the robbery with which he and the other defendants were charged. Given the above and the fact that his alleged confessional statement denied participating in the robbery, the lower Court was wrong when, with regard to the Appellant, it held that the defendants (including the Appellant) had adopted each other’s confessional statements. The trial Court convicted the appellant on the alleged confessions of the co-defendants, contrary to the position of the law that the confessional statement of an accused person is no evidence against the co-accused who denies the offence and has not adopted the statement. It was a misdirection on the part of the lower Court to use/rely on the statements of the other defendants, against the appellant when the Appellant did not adopt the statements. It is reiterated by Appellant’s counsel that with regards to the circumstances under which the alleged confessions were obtained, there was evidence before the Court that Appellant and the other defendants were physically assaulted and tortured to make a confession. That both the prosecution and the Appellant testified to this act of physical assault. This is therefore a case where the physical assault on the Appellant is also admitted by the prosecution, yet the lower Court gave no consideration to this in determining the credibility and reliability of the said statements. With regard to the physical assault, the prosecution’s first witness PW1 testified as follows during cross-examination:
“…later l heard the news that the people who went and robbed me had been arrested. On hearing this, l immediately rushed to the police station and met them being beaten.”

Apart from the admission of the prosecution to beating the defendants as seen in PW1’s evidence highlighted above, all the other defendants also gave evidence of the torture and beating they faced in the hands of the police. Appellant’s counsel is of the view that the lower Court did not give proper consideration to the evidence of both the prosecution and the Appellant as to the torture and physical assault visited on the Appellant, in determining the weight to be attributed to the alleged confession, and in dismissing the retraction as being merely an afterthought. Rather than consider the evidence of physical assault and its effect on the credibility and weight of the alleged confessional statements, the Court held that it did not determine the voluntariness of the confessional statement because there was no such application which could have granted the Court the opportunity to look at the circumstances under which the statements were made, See page 72 of the record. Learned counsel is of the view that the lower Court recognized, that there were issues as to the voluntariness of the confessional statement, it was of the erroneous view that the only way to give consideration to the issues was by determining the voluntariness of the confessional statements through a trial within trial following an application by the defence. In the interest of justice, the lower Court could have, and should still have considered this issue in relation to the weight to be attributed to the said confessions, even if not in relation to the question of admissibility and its failure to do so resulted in a miscarriage of justice, and is fatal to the conviction of the Appellant. The case of Aliu v State (2015) 2NWLR (Part 1442) 78-79 para H-D was cited. Appellant’s counsel reiterated the fact that the inconsistencies range from the number of assailants, the name/identity of the victim of the robbery, the identity of the Appellant (including his age), the location of the robbery and the types of weapons used and the exhibits tendered. The Appellant alleged confessional statement contains no confession as to the robbery of Gambo Ya’u. The statement of DW2 mentioned the involvement of three people in the robbery of one Usher (not Gambo Ya’u). The victims of the crime (PW1 and PW2) stated during their evidence in chief that there were only two unidentified armed robbers. The charge on the other hand listed four persons. Despite the fact that two unidentified people were seen by the victims of the crime, four people were charged and arraigned before the lower Court. These are clear and obvious contradictions in the evidence led by the prosecution. How can four people be convicted of an offence which the victims said was committed by only two people? The second point articulated by Appellant’s counsel was that, it was also not clear which armed robbery incident was the subject of the trial, when different names were put forth by the prosecution as the primary victim of the robbery. While on one hand the 2nd accused’s alleged confessional statement states that the victim of the armed robbery is one Usher, on the other hand the person who testified as victim of the robbery, said his name is Gambo Mallam Ya’u. PW2, his wife also gave her name as Basiri Ya’u. Neither PW1, nor PW2, gave their names as Usher. The 3rd accused person, Musa Nashehu referred to an individual named Gambo, while the alleged confessional statement of the 1st accused person (Abdullahi lbrahim ) says the victim is Gambo Usha. There is no explanation by prosecution for this obvious inconsistency. The third point raised by Appellant’s counsel is with regards to the identity of the Appellant as 4th Defendant at the trial Court, the Appellant’s alleged confessional statement states that the Appellant was 25years old as at 2016 and lives in Kofor Yamma, Dankama village, whereas the Appellant stated in his testimony in chief on 3rd April 2017, that he was 18years old and lived at Kaita prior to his detention. The Appellant’s testimony as to his age and residence were not dislodged by the prosecution during cross-examination. While the charge read that the robbery occurred in Dankama village, the victim of the crime PW1, and his wife PW2 said the robbery occurred at their house in Dankaba, a totally different location from Dankama. The question asked was, where exactly was the alleged crime committed if there was a crime at all. The inconsistencies in the amount allegedly stolen and recovered were pointed out by Appellant’s counsel. PW5, said that the houses of the accused persons were searched after which a sharp knife, matchet, masks, sticks, bright torchlight, N65,000 and 5000 sefa (sic) were recovered from the accused persons. See page 16 and 17 of the record of appeal. The exhibit keeper PW7, said the sum registered with him was N65,000 and 10,000 CFA. See page 28 of the record of Appeal. It was reiterated by Appellant’s counsel that, the said exhibits including the allegedly recovered money, could not have been connected with the alleged robbery, having been registered with, and kept in the custody of the exhibit keeper, three weeks before the alleged robbery. Appellant’s counsel contended from the above, that the evidence before the lower Court when compared to the confessional statements, give rise to reasonable doubt as to the Appellant’s participation in the alleged crime. Therefore the lower Court did not discharge its duty to take into account all the evidence tendered in rendering its judgment. The implication of the material inconsistencies is that the conviction and sentence of the Appellant cannot stand. This Court was urged to re-evaluate the evidence and find that the prosecution failed to prove the guilt of the Appellant beyond reasonable doubt.

THE SUMMARY OF RESPONDENT’S COUNSEL’S SUBMISSIONS
The Appellant’s argument under issue one contained from paragraphs 4.4 to 4.5 of the Appellant’s Brief of Argument is that the trial Court ought not to attach any weight to Exhibits A and B since the Appellant objected to its admissibility and that the confessional statements contained no confession as to the commission of the crime. Importantly, Section 29(1) of the Evidence Act Cap. E14, LFN 2004 clearly provides a confession made by a Defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings. Also my Lords, the voluntariness of the Exhibits A and B is not in contention by the Appellant. Therefore, the Exhibits are deemed relevant fact and admissible against the Appellant as provided for by Section 27(2) of the Evidence Act. Respondent’s counsel submitted that Exhibits A and B being the voluntary confessional statement of the Appellant and the English translation thereof is enough to ground the conviction of the Appellant as his statement was a voluntary confession of guilt and it is direct and properly established. At page 79 lines 13-19 of the printed record, the Appellant stated that:
“I could remember on Monday 05/09/2016 at about 2000hrs while I was coming from our home I met with following persons (1) Abdullahi Ibrahim alias Makuri (2) Masaudu Musa (3) Musa Nashenu. The said Abdullahi Ibrahim alias makuri as that (sic) that there was an assignment which we are going to performed, we are going to one Lawal Gurjum to rob him on the same date at about 0100hrs.”

Counsel submitted that findings of fact made by a trial judge are supported by the evidence adduced at the trial. This is the position of Court in Ismail v. State (2011) 17NWLR Pt. 1277 at 601. In this instant case, the trial Court who had the opportunity to watch and decipher the demeanor of the Appellant while taking his evidence held at page 72 of the printed record that:
“In light of the above finding that I strongly hold the view that the retraction DW1 – DW4 are just an afterthought which will not avail them as escape route.”

It is note-worth that the contents of Exhibits E1 and E2, F and F1 being the confessional statements of the other accused persons, are in tandem with the contents Exhibits A and B. These are contained in pages 80-85 of the printed record. Importantly, the robbery occurrence of 5th September 2016 and the roles played by the Appellant as well as other Defendants, were sufficiently captured in the Exhibits A and B. A cursory look at Exhibit E2, in line 24 of page 82 of the printed record shows that the Appellant was in company of other Defendants and indeed committed the crime with them. One of the Defendants confessed that:
“… and I go and meet the following persons (1) Musa Nushemu (2) Danlami Sani (3) Masaudu Musa M and on 04/09/2016 at about 2200hrs.”

This statement which shows the involvement of the Appellant was further corroborated by the content of Exhibit F1 at page 84 of the printed record. Musa Nashenu (one of the Defendant at trial) confessed (in his direct confessional statement made in Hausa language) that:
“… tari da Abdullahi Ibrahim, Musa Nashemu da Danlami Sani mu doka kudi chi lokochi bashin a gida suo Da seneri kudi na niger republic 5000CP.”

There is sufficient reason to believe that Exhibit A is the statement of the Appellant and we urge your Lordships to so hold. In line 13 of Exhibit A (contained at page 79 of the printed record), the Appellant stated that:
“I could remember that on Monday 05/09/2016 at about 2000hrs while I came out from our home I met with the following persons (1) Abdullahi Ibrahim alias Makuri (2) Masaudu Musa (3) Musa Na-Shehu. The said Abdullahi Ibrahim Makuri asked that there was an assignment which we are going to performed, we are going to one Lawal Gurgu to rob him on the same date at about 0100hrs. We went to the house of Lawai Gurgu the said Abdullahi Ibrahim alias makuri jumped into the house of the said Lawal Gurgu and opened the door there we all entered the house. I armed with a stick, Abdullahi Ibrahim Makuri armed with a knife, Musa Na-Shehu armed with a stick while Masaudu Musa armed with a stick….”

Respondent’s counsel on the strength of Exhibit A, we submitted that the trial Court was right to have found the Appellant guilty of the offence of armed robbery; as Exhibit A and B is without doubt, the Appellant’s confessional statement. It is trite in law that the confessional statement of the accused is sufficient to sustain a conviction. There need not be any other further proof. See R. v. SYKES (2013) 8 CAR 233 reported in ACHABUA v. The State (1976) 12 SC 63 at 68-69. See also Silas Ikpo v. State (1995) 8 NWLR (Pt. 421) 540 at 554. In Fabiyi v. State (2015) LPELR-24834, his Lordship Fabiyi JSC held at page 26 paras D-E that:
“It is here relevant to reiterate the point that a confessional statement constitutes a clear and cogent proof of an act of the accused person who made it. There is no evidence stronger than a person’s own confession.”

Learned counsel submitted that findings of fact made by a trial judge are supported by the evidence adduced at the trial. We refer your Lordships to the decision Ismail v. State (supra). The trial Court who had the opportunity to watch and decipher the demeanor of the Appellant while taking his evidence held at page 74 of the printed record that:
“I must say that I do not believe the story of the defendant. He demonstrated while giving evidence that he was a liar.”
Underline ours for emphasis.

Before a finding of fact, which is within the province and presence of the trial Court, the appellant must show that the finding of fact is perverse. That is, that it runs counter to evidence or that the Court did not consider or vice versa or where the findings occasioned a miscarriage of justice. We most humbly refer to Momoh & Ors v. Umoru (2011) … NWLR (Pt. 1270) at 217. The Appellant has woefully failed or neglected in proving any of these. The Appellant’s other contentions as argued in the Appellant’s Brief of Argument is best replied to in a poser:
“Whether having regard to the evidence led at trial Court, the prosecution successfully established the offence of Armed Robbery against the Appellant.”

Learned counsel submitted that it is the law that the prosecution must proof his case beyond reasonable doubt to secure conviction. It is in evidence and established by the contents of Exhibit A and B that there was a robbery on the 5th of September, 2016. In lines 13 – 19 of page 79 of the printed record, the Appellant while confirming that there was indeed a robbery and that he actively participated in the said robbery stated that:
“I could remember on Monday 05/09/2016 at about 2000hrs while I was coming from our home I met with following persons (1) Abdullahi Ibrahim alias makuri (2) Masaudu Musa (3) Musa Nashenu. The said Abdullahi Ibrahim alias makuri as that(sic) that there was an assignment which we are going to performed, we are going to one Lawal Gurjum to rob him on the same date at about 0100hrs.”

It is also clear that the Appellant and others were armed while they carried out their robbery activities on the 5th September 2016. This is captured in Exhibits A and B in lines 20 – 24 of page 79 of the printed record where the Appellant stated that:
“we went to the house of Lawal Gurgu, the said Abdullahi Ibrahim jumped into the house of the said Lawal Gurgu and opened the door and there we all entered the house. I armed with a stick/Abdullahi Abdullahi Ibrahim Makuri armed with a knife/musa ne-sheni armed with a stick.”

The prosecution has established the ingredients of the offence of Armed robbery by the confessional statement of the Appellant which is direct, cogent and unequivocal. Exhibits A and B contained a detailed enumeration of the activities of the Appellant and his gangs and therefore satisfy the requirement of conviction of Armed robbery. It is the law that once a Court is satisfied with the cogency, high quality and credibility of the evidence of a witness and accepts it, a conviction based on such evidence should not be interfered with. We rely on the decision of per Iguh, JSC in Oguonzee v State (1998) 5 NWLR (Pt. 521) at 543 H- 544, we contend and urge your Lordship to hold. On the Appellant’s contention that the evidence against the Appellant was not corroborated, we respectfully refer your Lordships to Exhibits El, E2, Fl and F contained in pages 80-85 of the printed record. The Exhibits are the confessional statement of other defendants and which equally narrated the robbery incidence on 5th September, 2016. We respectfully submit that Exhibits E1, E2, F1 and F sufficiently corroborated the evidence against the Appellant. Respondent’s counsel contended that it was sufficiently established that there were robbery activities in which the Appellant was actively involved and that the Appellant was armed. We urge your Lordships to so hold.

RESOLUTION OF THE SOLE ISSUE
Although slenderly adverted to at the start of this judgment, the brief background facts of this matter, are that the case of the prosecution before the lower Court was that on the 5th September, 2016, one Gambo Mallam Ya’u, was robbed by four masked individuals armed with sticks, matchetes, horns etc. According to PW1 (the nominal complainant) and PW2, his wife, they did not see their assailants because it was dark and the assailants wore turban masks. They were therefore unable to identify the assailants (Please see pages 10 to 12 of the Record of Appeal). PW5 also stated that the report given to the police was that “an unknown gang of armed robbers” robbed PW1 (Please see page 16 of the Record of Appeal). With regard to the victim of the robbery, Exhibits A and B (the English and Hausa versions respectively of the Appellant’s alleged confessional statement tendered by the prosecution) state that the victim of the robbery is one Gamba while the victim who testified as PW1 gave his name as Gambo Mallam Ya’u. The confessional statement of another defendant (OW2) described the victim of the robbery as Usher while the charge (found at page 1 of the Record of Appeal) describes the victim as Gambo Ya’u. There was nothing on record explaining the connection between Usher and Gambo Ya’u or Gambo Mallam Ya’u. There were also inconsistencies as to the amount stolen, the amount recovered, the location of the robbery etc which shall all be addressed under the arguments. According to PW1, later that day (i.e. the same 5th September, 2016) he reported the robbery incident at the Dankaba Police Station. He then left the Police Station and returned home. The same day, while sitting in a gathering, he heard the news that the individuals who robbed him had been arrested so he immediately rushed back to the Police Station where he met the said individuals being beaten by the Police. He was unable to identify the individuals who robbed him and he also did not at any point say that there were any of the accused persons before the lower Court. None of the policemen from the Katsina State Police Criminal Investigation Department (CIO) who testified as PW3, PW4, PW5 and PW6 gave them dates when the Appellant and the other accused persons were arrested. They however stated in their separate testimonies that a case of criminal conspiracy and armed robbery was transferred from Kaita Police Station to the Police State CID on 7 September, 2016 (PW3, PW4 and PW6) and on 6th September, 2016 (PW3). Apart from stating that they obtained the confessional statements of the defendants and recovered the weapons used for the commission of the crime, PW3, PW4, PW5 and PW6 gave no evidence as to their findings during the investigation. There was no explanation as to how the police came to suspect the Appellant especially as PW1 and PW2 did not identify any assailant, provide any description or mention anybody’s name and the Appellant and the other accused were not arrested at the scene of the robbery. To make matters worse, the prosecution simply stated that the Appellant was arrested. During the trial, the prosecution called a total of seven (7) witnesses and tendered a number of exhibits in proof of their case. The anchor of the prosecution’s case was (a) the confessional statements attributed to the accused persons in which they allegedly admitted to committing armed robbery, and (b) certain exhibits allegedly recovered from the accused persons homes. In response, the accused persons testified for themselves as DW1, DW2, DW3 and DW4 respectively. In their testimonies, all the accused persons including the Appellant, retracted their respective confessional statements. The Appellant was actually beaten severely and had tear gas sprayed on him before he was forced to thumbprint his alleged confessional statement. It is not in dispute that the Appellant was tortured as even the prosecution gave evidence that the Appellant was beaten by the police at the station. After adoption of final addresses by counsel, the lower Court rendered its judgment in which it found all the accused persons, including the Appellant, guilty of the offence of armed robbery and sentenced them to 21 years imprisonment.

This was in spite of the glaring lack of credibility of the prosecution’s case. At the trial of the case, the Appellant retracted his alleged confessional statement on the ground that he did not make it voluntarily. The statement was nonetheless admitted in evidence as an exhibit. Further at the trial, in the bid to establish the offence the Appellant was charged with, the Respondent fielded seven witnesses and tendered ten exhibits in evidence, one of which is the Appellant’s said confessional statement as an exhibit. In his own defence, the Appellant gave evidence but did not call any other witness and did not tender any document in evidence.

The contentions of the Appellant are that the armed robbery was not established beyond reasonable doubt against the Appellant by the Respondent and that the trial Court did not properly evaluate the evidence adduced by both parties before it convicted the Appellant for the offence.

Before proceeding with the resolution of the poser: whether or not the legal onus placed on the Respondent in establishing the offence of armed robbery against the Appellant was discharged? I will pause to quickly reiterate the definition of the offence of armed robbery from the stand point of the Robbery and Firearms (Special Provisions) Act (Supra) under which the Appellant herein has been charged. Section 11 of the Act defines robbery as meaning stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain it or retain the thing stolen or retained. Therefore, armed robbery within the context of the Act simply means, robbery while armed with an offensive weapon. In the case of Ibrahim v. State (2014) 3 NWLR (Pt. 1394) p. 305, the Supreme Court per Ariwoola, JSC on the point stated that:
“Generally, robbery means the illegal taking of property from the person of another or in the person’s presence by violence or intimidation. While armed robbery is robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used”.

Now, in the bid to establish the ingredients of the offence of armed robbery with which the Appellant was charged, it is patent on the record of appeal that, the Respondent relied on the evidence of eye witnesses as well as on the confessional statement of the Appellant and the trial Court found on these. On the first ingredient of armed robbery, that is, it must be established that there was a robbery, the evidence of PW1 and PW2 is contained in pages 10 to 12 of the record of appeal. PW1 and PW2 were both victims of and eyewitnesses to the purported crime. Their accounts of the event on the night of the incident are identical. They both stated that they were woken up from sleep by some home invaders. The total sum of two hundred and three thousand naira, and twenty-five pounds in CFA, was forcefully stolen from PW1. The Appellant’s confessional statement Exhibits A and B contains no confession as to the robbery of Gambo Ya’u or anybody. An examination of the alleged confessional statement of the Appellant and the English translation of the same pages 78 to 82 of the record of appeal show clearly that the Appellant did not confess to participating in the alleged offence. In relation to this offence, the Appellant stated as follows in the said exhibit: “l did not go to Gambo’s house. I did not involve in the (scene) and l did not know anything about Alhaji Murtala…”

An accused person can be convicted solely on his confessional statement if made voluntarily and it is fully consistent and probable. It is however desirable to have outside the confession some evidence be it slight of circumstances which make it probable that the confession is true. See Alo v. State (2015) 2 SCNJ (Pt 11) 405.

On his own part, the Appellant testified as follows regarding what he suffered in the hands of the police prior to the alleged confession:
“They requested that l should tell them the truth because they did not believe the answer l gave them. Then they took me inside a cell. Around 2pm they came and brought me out of the cell and requested that l should tell them the truth. I stood my ground that, that was the truth l could tell them… they said since l was not ready to speak out, they would spray tear gas on me and beat me up. Someone was sitting and writing something which l did not know…. When l realized that the beating was getting too much, l agreed to sign.”

Appellant’s counsel rightly noted that the purported confession of the Appellant contains no confession as to the commission of the crime for which he was charged and tried. The prosecution failed to establish the offence of armed robbery against the Appellant beyond reasonable doubt. The inability of the eye witnesses to identify the armed robbers is particularly important because establishing the offence of armed robbery requires not only that the prosecution establishes that there was a robbery which was carried on with offensive weapons, but also that the defendants charged carried out or participated in the said robbery.

In attempting to connect the Appellant to the alleged robbery, the prosecution relied on (a) the alleged confessional statement of the Appellant and (b) the exhibits tendered by PW7, the exhibit keeper which consisted of some offensive weapons that were allegedly used during the robbery and found in the homes of the accused persons. In the case of Nwaebonyi v The State (1994) 4 NWLR (Part 343) 138 at 157 lguh, JSC held as follows:
“The law on the issue of a retracted confession is that although the Court can still admit and convict on such retracted confession if it is satisfied that the accused voluntarily made the statement and that there are circumstances which give credibility to the contents thereof, yet it is desirable that before a conviction can be properly based on such retracted confession, there ought to be some corrobative evidence outside the confession which makes it probable that the confession is true.”

The charge on page 1 of the record of appeal states that the robbery occurred on the 5th day of September, 2016. On 1st February, 2017, during the trial at the lower Court, the exhibit keeper, who testified as PW7, while tendering the exhibits allegedly used during the commission of the robbery stated as follows:
“On 14/8/2016 one, inspector Adamu Musa attached to Anti-Robbery Section of SCID Katsina brought some exhibits in connection with this case against one Abdullahi lbrahim and 3Ors for registration, l registered them and gave them numbers, they are as follows…”

The judge at the lower Court erred when he relied on the exhibits deposited with the exhibit keeper in August, three weeks before the armed robbery was committed. Also the lower Court was wrong when it held on page 71 of the record of appeal that the Appellant adopted the confessional statements of the co-defendants because they corroborated the confession of the Appellant. The Appellant made no such confession the trial Court found that; the confessional statements of the accused persons though retracted established that they committed the offence as charged. I do not agree with the lower Court, in that the alleged confessional statement of the Appellant contains no confession to any crime. The lower Court did not in my view give proper consideration to the evidence of both the prosecution and the Appellant as to torture and physical assault visited on the Appellant, while extracting the confessional statement from him. There was evidence even from the prosecution that the accused persons were beaten by the police at the police station the day they were arrested. That piece of evidence corroborates the evidence of the Appellant that he was assaulted by the police before they extracted the confession from him. The lower Court ought to have considered the voluntariness of the retracted confessional statements in relation to the weight to be attached to such statements. The prosecution did not prove the first ingredient of armed robbery. The evidence placed before the trial Court in proof of armed robbery being confessional and retracted, the first ingredient of robbery was not proved before the trial Court end.

It is clear from all that I have stated above that the only issue for determination should be resolved in favour of the Appellant. I resolve the said issue in favour of the Appellant. I allow the appeal. The conviction and sentence of the Appellant are hereby quashed and the Appellant discharged and acquitted.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

PETER OYINKENIMIEMI AFFEN, J.C.A.: I agree.

Appearances:

Olujoke Aliu, Esq, For Appellant(s)

Omosanya A. Popoola, Esq, For Respondent(s)