IBRAHIM YAHAYA v. THE STATE (2016)

IBRAHIM YAHAYA v. THE STATE

(2016)LCN/8196(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of February, 2016

CA/K/281/C/2014

RATIO

APPEAL: WHETHER THAT APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

It is settled law that when the trial Court has unquestionably performed its function and has satisfactorily evaluated the evidence before it, it is not for the appellate Court to evaluate the same evidence and come to its own decision except where the findings or conclusions arrived at are perverse or wrong inferences were drawn or made on accepted facts or wrong principles have been applied to the facts. OSUJI v. EKEOCHA (2009) 16 NWLR (Pt.1166) 81 SC, THOMPSON v. AROWOLO (2003) 7 NWLR (PT.818) 163. per. AMINA AUDI WAMBAI, J.C.A.

APPEAL: FINDINGS OF FACT; WHEN CAN A FINDING OF FACT SAID TO BE PERVERSE

A finding of fact or decision of Court is said to be perverse when it runs counter to the evidence and pleadings or the trial Court took into account matters which it ought to have taken into account (extraneous matters) or shuts its eyes to the obvious or when the decision has occasioned a miscarriage of justice. MINI LODGE LTD & ANOR v. NGEI & ANOR (2009) 18 NWLR (PT.1173) 254, NEPA v. J. A. OSOSANYA & ORS (2004) LPELR 1960 (SC) per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: BURDEN AND STANDARD OF PROOF; WHO HAS THE BURDEN OF PROOF IN CRIMINAL CASES AND WHAT IS THE STANDARD OF PROOF IN CRIMINAL CASES

It is an indispensable feature of our criminal jurisprudence and procedure that the burden of proving that any person has committed an offence rests squarely and rigidly on the prosecution which burden by virtue of Section 138 of the Evidence Act the prosecution can discharge only if it successfully proves each and every ingredient of the alleged offence beyond reasonable doubt – KAYODE v. STATE (Supra). Where the prosecution fails to prove any of the ingredients beyond reasonable doubt, the accused is entitled to an acquittal. AFOLABI v. STATE (2010) 6-7 MTSC 187, 220, ABIODUN v. FRN (2009) 7 NWLR (PT.114) 489, 509, GABRIEL v. STATE (SUPRA). per. AMINA AUDI WAMBAI, J.C.A.

CRIMINAL LAW: THE OFFENCE OF ARMED ROBBERY; THE MEANING AND THE INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

The indispensable ingredients of the offence of armed robbery which the prosecution must prove beyond reasonable doubt have been set out in a number of cases to be:-

(a) That there was a robbery or series of robberies;

(b) That the robbery was an armed robbery; and

(c) That the accused person was the robber or took part in the robbery or robberies. All these 3 ingredients must co-exist before an accused person can be found guilty of the offence.

OLAYINKA v. STATE (2007) ALL FWLR (PT.373) 163, BELLO v. STATE (2011) 18 NWLR (PT.1278) 353, EKE v. STATE (2011) LPELR ? 1133 (SC), AFOLALU v. STATE (2010) 16 NWLR (PT.1220) 584 SC. BOZIN v. STATE (1985) 2 NWLR (Pt.8) 465.

“Robbery” means:- “Stealing anything and at or immediately before or after the time of stealing, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained”. The word “arm” refers to any article made or adopted for causing injury to any person having it for such use by him and includes even a piece of wood, metal or stone capable of being used as an offensive weapon. It is now firmly settled that the guilt of an accused person may be proved either by the evidence of a person who witnessed the commission of the offence (eye witness), confession of the accused or by circumstantial evidence. IGIRI v. STATE (2012) 16 NWLR (PT.1327) 522, 541 B, HARUNA v. A.C.F. (2012) LPELR – 7821 (SC). per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: CONFESSION; TESTS CONFESSIONAL STATEMENT MUST BE SUBJECTED TO BEFORE THE COURT WOULD BELIEVE AND ACT UPON IT

It is therefore desirable that before the Court would believe and act upon the confession, same must be credible and there should be outside the confession, some evidence however slight to make it probable that the confession was true. It should thus be subjected to the following acceptability tests:-

“i. Is there anything outside the confession to show that it is true?

Is it corroborated?

iii. Are the relevant statements made in it of facts true as far as they can be tested?

Was the prisoner one who had the opportunity of committing the murder?
Is his confession possible?
Is it consistent with other facts which have been ascertained and have been proved” per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: CORROBORATION; WHETHER AN ACCUSED CAN BE CONVICTED ON AT HE EVIDENCE OF A SINGLE EYE WITNESS WITHOUT CORROBORATION AND WHETHER SUCH EVIDENCE DISLODGES ANY ALIBI PUT FORWARD BY THE ACCUSED

The Law is clear that an accused can be convicted solely on a clear, credible and unimpeachable evidence of a single eye witness without any need for corroboration ADELUMOLO v. THE STATE (1988) 1 NWLR (PT.73) 683, ALI & ANOR v. STATE (1988) 1 NWLR (PT.73) 683, ALI & ANOR v. STATE (1988) 1 NWLR (Pt.68) 1. Such a clear, credible and positive evidence of an eye witness which positively fixes an accused at the scene of crime, I dare say, also dislodges and destroys any alibi put forward by the accused. THE STATE v. AZEEZ (2008) 14 NWLR (Pt.708) 439, IDIOK v. THE STATE (2008) 13 NWLR (PT.1104) 225, VICTOR v. STATE (2013) LPELR – 20749 (SC). per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: IDENTIFICATION EVIDENCE: WHAT IS IDENTIFICATION EVIDENCE AND THE ISSUES THE COURT SHOULD CONSIDER AS TO THE IDENTIFICATION EVIDENCE OF AN EYE WITNESS AND BASING CONVICTION THEREON

However, before ascribing value to identification evidence of an eye witness and basing a conviction thereon, the Courts have been enjoined to meticulously consider the following issues, so as to guide against cases of mistaken identity. These are:-

(1) Circumstances in which the eye witness saw the suspect was it in difficult condition.

(2) The length of time the witness saw the suspect or defendant, a glance or longer

observation

(3) The opportunity of close observation

(4) Previous contact between the two parties.

(5) The lighting condition see Ochiba v. The State (2011) LPELR 8245 (SC), Etisi v. State (2002) 15 NWLR (Pt.697) 55, Ikemson v. State (supra), Sunday Ndidi v. State (2007) All FWLR (Pt.381) 1617.

Identification evidence is the evidence tending to show that the person charged with that offence is the same person who was seen committing the offence. Ndukwe v. State (2009) 7 NWLR (Pt.1139) 43 SC, Nwaturuocha v. The State (2010) LPELR 4646 (CA). per. AMINA AUDI WAMBAI, J.C.A.

JUSTICES

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

IBRAHIM YAHAYA – Appellant(s)

AND

THE STATE – Respondent(s)

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Katsina State High Court delivered on 27th July, 2012 in charge No.KTH/27/C/2002 dated 24th December, 2002. The Appellant as the 6th accused person was charged along with five (5) other persons on a one count charge of the offence of armed robbery punishable under Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act, in that the Appellant along with the 5 other accused persons on or about the 22nd day of February, 2001 at about 0230hrs at Sabuwar Kasa village in Kafur Local Government Area of Katsina State attacked Alhaji Ummaru Masanawa (the village head of Sabuwar Kasa) with a gun and dispossessed him of the sum, of about N30,000.00 cash and thereafter shot him with the said gun which led to his death.

The Appellant pleaded not guilty to the charge consequent upon which the prosecution called 8 witnesses and tendered several exhibits including Exhibits 10A and 108, Appellant’s statements to the Police, the voluntariliness of which the Appellant denied.

In defence of the charge, the Appellant who testified as

DW6 but tendered no exhibit or called any other witness, denied any involvement in the commission of the offence.

At the conclusion of the trial, both the defence and prosecuting Counsel filed their respective final written addresses and adopted same. The learned trial Judge in a considered Judgment delivered on 27th April, 2012, found that the prosecution proved its case beyond reasonable doubt against the Appellant and accordingly convicted and sentenced him to death under Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act CAP 398 LFN 1990 as amended.

Aggrieved by the conviction and sentence, the Appellant commenced this appeal through a notice of appeal filed on 03/02/2014 predicated upon 6 grounds of appeal pursuant to the order of this Court granted the Appellant on the 22nd January, 2014, to appeal out of time.

?The brief facts of the case are that on the 22nd February, 2001 (22/02/2001) at about 2:00am some people went to the house of Alhaji Ummaru Masanawa, the village head of Sabuwar Kasa village in Kafur Local Government Area of Katsina State, now deceased, and demanded him to give them money and upon saying that he

had no money, they beat him with sticK and then shot him with a gun. He later became unconscious and subsequently died from the gun shots.

Eight persons, including the Appellant were later arrested in connection with the robbery. Only six of the eight arrested persons, were charged, the Appellant being the 6th accused person.

In the prosecution of the appeal and in line with the Rules of this Court, briefs of argument were exchanged and adopted at the hearing of the appeal on 25/01/2016. The Appellant’s brief of argument settled by B. C. Igwilo Esq dated 23/04/2015 was deemed properly filed on the 27/04/2015 which the Respondent’s brief of argument dated 28/09/2015 and filed on 05/10/2015 but deemed properly filed on 06/10/2015 was settled by Abu Umar Esq., Senior State Counsel, Ministry of Justice Katsina State.

In setting forth and expounding his grievance with the decision of the Lower Court, the learned Counsel for the Appellant distilled 4 issues for determination; thus:-

“(i) Whether the learned trial Judge was right in admitting Exhibits 10A and 10B, the Appellants purported confessional statement, after holding that both are

admissions in line with S. 27(i) and (ii) of the Evidence Act. (Ground 1, 2 and 3)

(i) Whether the learned trial Judge was right when he held that each robbery was on armed robbery, in line with the exhibits tendered against the Appellant during trial.

(ground 4)

(ii) Whether the learned trial Judge was right when he held that the prosecution had led positive evidence which fixed the Appellant at the scene of the crime which thereby destroyed the defence of Alibi set up by the Appellant? Ground 5

(iii) Whether the learned trial Judge was right when he held that the prosecution had proven its case beyond reasonable doubt? Ground 6”

On his part, the learned Counsel for the Respondent raised 3 issues for determination, these are:-

“(a) whether the Trial Court properly admitted Exhibits 10A and 10B and therefore admissible in Law.

(b) whether going by the evidence led by the Respondent before the Lower Court the Respondent had proved its case beyond reasonable doubt ogoinst the Appellant.

?The issues raised by the Respondent in my view better

capture the issues in contention in this appeal, and the appeal will therefore be determined on these 3 issues as rephrased thus:-

“(1) Whether in the circumstances of this case, Exhibits 10A and 10B were properly admitted in evidence.

(2) Whether the defence of alibi avails the Appellant.

(3) Whether the learned trial Judge was right in holding that the Respondent proved its case beyond reasonable doubt against the Appellant”.

ISSUE NO. I

WHETHER IN THE CIRCUMSTANCES OF THE CASE, EXHIBITS 10A and 10B WERE PROPERLY ADMITTED IN EVIDENCE.

Learned Counsel for the Appellant argued that Exhibits 10A and 10B were not freely and voluntarily made by the Appellant but were obtained by torture and duress from the police, contrary to Sections 28 and 29 (1) of the Evidence Act and he referred to page 123 of the record where the Appellant stated the torture meted out to him. The statements, Counsel contends, ought not have been admitted and relied upon by the trial Court, citing in support, NAMSOH v. STATE (1993) SC JN 5, NWACHUKWU v. STATE (2002) FWLR (Pt. 123) 112 @ 331, 335, AKPAN v. STATE (2001) FWLR (Pt.56) 735, 755 CA.

He also

complained that Exhibit 10A rendered in Hausa Language was recorded by a person not grounded in the Language and its English translated version Exhibit 10B, was not signed by either the Appellant, the translator or anyone, contrary to Section 93 (1) of the Evidence Act thereby making the unsigned statement inadmissible in evidence.

Additionally, he complained that in admitting Exhibits 10A and 10B the learned trial Judge did not in his Ruling on the “trial within trial” outline his for preferring the evidence of the prosecution to that of the Appellant, thus, pre-empting and determining the Appellant guilty during the “Trial within Trial” and concluded that both the unsigned Exhibit 10B and 10A are neither relevant nor admissible in evidence.

In his response on this issue, learned Counsel for the Respondent posited that Exhibits 10B and 10A were voluntarily made by the Appellant and duly recorded by PW3 as shown by the evidence of PW3 in the main trial and those of the prosecution witnesses for the ”Trial within Trial” at pages 49 lines 10-18 and page 84 lines 6-11 of the record, which evidence were not impeached in cross-examination. The

Appellant’s denial in his defence in the ”Trial within Trial” of ever giving the statement to the Police, Counsel argued, does not preclude the Court from acting upon the retracted confession and for this, he referred to UBIERIIO v. STATE (2005) 5 NWLR (Pt.919) 644, 656 Para B, 663 Para D ? H, HASSAN v. STATE (2001) 15 NWLR (Pt.735) 484, @ 199-202.

On the assertion that Exhibit 10A rendered in Hausa Language could not have been translated by the IPO not being grounded in the Hausa Language, Counsel responded that the onus was on the Appellant to prove the assertion which he failed to do, and that Exhibit 10B contrary to Appellant’s contention, was signed by the IPO whose signature suffices and that Section 93(1) of the Evidence Act, does not apply.

?On the complaint that the learned trial Judge did not outline the reasons for preferring the Respondent’s case to that of the Appellant in the ”Trial within Trial”, it was argued that it is not every error, omission, mistake technicality or irregularity in a Judgment or Ruling that leads to a reversal except one that occasions a miscarriage of justice or breaches the Appellant’s right to fair hearing

which the Appellant has not shown had occurred in this matter. He referred to SHARFAL v. STATE (1992) 7 NWLR (Pt. 285) 510 523, SOLOLA v. STATE (2005) 2 NWLR (Pt.937) 460, 485, UDEHU v. STATE (1999) 7 NWLR (Pt.609) 24.

He maintained that the failure to evaluate the said evidence is not fatal and cannot make Exhibits 10A and 10B inadmissible as this Court is entitled to interfere and re-evaluate the evidence where the trial Court fails to do so, citing the case of TUKUR v. UBA (2012) 7 SCNJ 328, 363-364 in support.

Moreover, it was argued that the Appellant having in his evidence in the “Trial within Trial” retracted the confession, the trial Judge was entitled to admit the statements in evidence without the need to evaluate the evidence thereat adduced. Citing in support the cases of OSAKWE v. THE STATE (1994) 2 SCNJ 57 @ 71, IBEIWE v. STATE (2013) 2 SCM 1012, and that the said retracted confession can ground the conviction of the Appellant. Citing HASSAN V. STATE (Supra)

Now, a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. It is usually an

extra-judicial statement made by an accused person to the Police containing assertion of admission showing or indicating that he participated in the commission of the offence for which he stands charged. Once the statement admits the charge or creates the impression that he, the accused committed the offence charged, the statement becomes confessional. See ORE-OFE ADESINA (AKA ALHAJI) & ANOR v. THE STATE (2012) LPELR 9722 (SC), SAIDU v. THE STATE (1990) 7 NWLR (PT.160) 101, 109, MOHAMMED v. STATE (2007) ALL FWLR (Pt.384) 46, and Section 28 (1) of the Evidence Act, 2011.

By virtue of Section 29(1) of the Evidence Act, such a confession is relevant only against the maker where it is made voluntarily SAM v. THE STATE (1991) 2 NWLR (Pt.176) 699, 706, FRN v. FAITH IWEKA (2011) LPELR-9350 (SC).

The burden of proving affirmatively beyond reasonable doubt that the confession was made voluntarily, it is settled law, rests squarely on the prosecution OSENI v. STATE (2012) LPELR-7833 (SC), AUTA v. STATE (1975) NNLR 60, 65 (SC), ADEKANBI v. A.G.W.N. (1961) ALL NLR 47, and except the prosecution discharges this burden beyond reasonable doubt, the

confessional statement cannot be admitted in evidence. NWANGBONU v. STATE (1994) 2 SCNJ 107, OJEGELE v. STATE (1988) 1 NWLR (Pt.71) 414, 421, KURE v. STATE (2014) LPELR 23467 (CA).

It is also firmly settled that where a confessional statement is tendered in evidence by the prosecution and its voluntariness is challenged by the accused person, the proper procedure is for the trial Court to conduct a Trial within Trial (TWT). Several authorities abound on this principle of Law. These include FRN v. Daino (2015) LPELR-24303 (SC), OBIDIOZO v. STATE (SUPRA), DEGA v. STATE (2014) LPELR – 24197 (CA), ADISA v. THE STATE (2013) LPELR – 20684 (CA), OGUDO V. STATE (SUPRA).

In the instant case when the prosecutor (Respondent) applied to tender the Appellant’s statement in evidence through PW3 who testified that he recorded same voluntarily from the Appellant, Counsel to the Appellant took objection to its admissibility on ground of involuntariness that the Appellant was beaten, which led to the conduct of the ?”Trial within Trial” whereat the Respondent called two witnesses, Inspector Yunusa Adamu, PW3, as PW A and Sgt Muntari Alhassan as PWC who

denied beating or torturing the Appellant and maintained that the statement was voluntarily made by the Appellant. The Appellant testified in his defence as DW B and narrated how he was chained at both hands and legs and beaten by the PWA, PW C and others.

He continued his evidence in chief that:-

“From there they brought out papers for me to sign which I couldn’t after 6 (six) days they brought a piece again for me to thumb print which they did by force”.

In cross-examination he stated inter alia:-

“I’m not the maker of the statement which I thumb printed”, (See pages 78-79, 84-86 and 123 of the record).

At the end of the “Trial within Trial” the learned trial Judge overruled the Appellant’s objection and admitted the Hausa version of the statement and its English translation as Exhibits 10A and 108 respectively. The Appellant’s grievance against the Ruling is that the Learned trial Judge failed to outline his reasons for preferring the evidence of the Respondent to that of the Appellant. The said Ruling earlier reproduced in this Judgment is at page 128 of the record of Appeal.

Undoubtedly, a trial within trial is a

separate and distinct trial from the main trial, conducted primarily to determine the voluntariness or involuntariness of an alleged confessional statement wherein evidence is adduced for both parties, Counsel on both sides address the Court and the Court delivers its Ruling on the objection. Auta v. State (1975) 4 SC 125, Nsofor v. State (2004) 18 NWLR (Pt.905) 92, Lateef v. FRN (2010) 37 WRN 85, Ogunzee v. State (1998) 4 SC 118-119, Obidiozo v. State (Supra).

?Like in every trial, the Court or Tribunal charged with the performance of judicial function is by law required not only to review and evaluate the evidence adduced at the trial before deciding on any matter, but also to make specific findings therefrom to enable an appeal Court to which an appeal lies, decide whether the finding was, on the evidence before it, valid. Halilu Mohamman v. IGP (1970) NNLR 98, Stephen v. State (1986) 5 NWLR (Pt.46) 978. This is also the only way the Court will be seen to have given open and even handed justice as against arbitrariliness. Otherwise parties will be left to grope in darkness as to how the Court arrived at its decision. Thus, to allow Courts to decide cases

without clearly stating the reasons for their decision, is to send an open invitation to arbitrariness which may lead to judicial anarchy. Agbanelo v. UBA (2000) 7 NWLR (Pt.666) 540, Ogboru & Anor v. Uduaghan & Ors. (2012) WDLR – 8287 (SC).

The said Ruling of the trial Judge clearly is devoid of any evaluation of the evidence of the witnesses, and reasons for the decision. The necessary question is whether the defect in the Ruling renders Exhibits 10A and 108 inadmissible.

I answer this question in the negative in view of the retraction of the confessional statement by the Appellant in his defence for the Trial within Trial, wherein the Appellant at page 123 of the record said in cross-examination that

“I am not the maker of the statement which I thumb printed”,

It is now firmly settled that a trial within trial is necessary only where the accused admits making the statement but denies its voluntariness and not where he denies making any or resiles from the confession. Where therefore, as in this appeal, the initial objection is predicated on the usual ground of involuntariness but the accused subsequently at the “Trial within

Trial” completely denies making the statement or contends that he was forced to sign or thumb print on an already prepared statement by the Police, the objection has become a complete denial of the statement and rendering it unnecessary to conduct or continue with a trial within trial. IGWE v. STATE (1960) 5 FSC 55, IBEME v. STATE (2013) 2 SCNJ 1012, OSAKWE v. STATE (1994) 2 SCNJ 57.

It is therefore proper for the trial Judge to admit the statement as retracted confession without evaluating the evidence for and against its admission, and to determine at the appropriate stage, the probative value to ascribe to same. See OGUDO v. STATE (2011) 12 SC (PT.1) 71.

In this wise, the failure of the learned trial Judge to evaluate the evidence adduced at the ?Trial within Trial” before admitting Exhibits 10A and 10B, the making of which the Appellant had denied and had resiled from, did not occasion a miscarriage of justice nor breached the Appellant’s right to fair hearing.

Further, the Appellant’s contention that Exhibit 10A is irrelevant and inadmissible because PW3 is not grounded in Hausa Language in which it (Exhibit 10A) was rendered, is unfounded and

unsupported by any evidence. Suffice it to say that the Law has since been and remains settled that failure to cross-examine a witness on a material fact in controversy is an admission of the fact. Thus, the failure of the Appellant to challenge PW3 in cross-examine on his proficiency in Hausa Language, is tantamount to an admission of PW3’s evidence that he understood and recorded Exhibit 10A in Hausa Language and translated same into English Language. See OKORO v. STATE (2012) LPELR 7846 (SC), GAJI v. PAYE (2005) 5 SC 53, ADEYEMI & ORS v. STATE (2014) LPELR ? 22609 (CA).

Appellant’s Counsel also contended that Exhibit 10B is inadmissible because same was neither signed by the Appellant nor the translator. A look at Exhibit 10B however reveals that it was signed by Sgt. Inusa Adamu, as its translator but not signed by the Appellant.

On the absence of the signature of the Appellant on Exhibit 10B, the Law is that the statement of an accused does not become inadmissible in evidence merely because it is unsigned by the accused, the issue of admissibility being different from that of probative value to be ascribed to the statement. In

Chukwuka Ogudo v. State (Supra) Rhodes Vivour JSC aptly stated the Law in the following phrase:-

“….Where on the other hand, the accused person says he did not sign the statement the statement should be admitted in evidence, thereafter, the question of what weight should be attached to such statement becomes an issue for the Judge to decide at the end of the trial…”

Additionally, having not raised the issue when Exhibit 8B was tendered in evidence, it is now too late to complain that same was not signed by the Appellant.

In the light of all the afore stated reasons, I hold that Exhibits 10A and 10B were properly admitted in evidence thereby resolving this issue against the Appellant. The issue of the proper probative value of the exhibits will be considered anon in the 3rd issue for determination.

ISSUE NO. 2

WHETHER THE DEFENCE OF ALIBI AVAILS THE APPELLANT.

It is the submission of learned Counsel to the Appellant that the Appellant raised the defence of alibi immediately he was arrested and in his evidence before the Lower Court testified that he was at a naming ceremony in the house of one Alhaji Bawa at Hulakundi but rather

than consider the alibi which the prosecutor did not disprove, the learned trial Judge wrongly misplaced the burden of proving the alibi on the Appellant by faulting his failure to call anybody from the naming ceremony. He referred to the cases of BALOGUN v. A.G. OGUN STATE (2002) FWLR (Pt.100) 1287, 1303 (SC), OSHODIN v.?THE STATE (2002) FWLR (PT.90) 1336, 1345 CA and urged upon us to hold that the Lower Court was wrong in placing on the Appellant the duty of proving his defence of alibi.

Astonished by the assertion that the “alibi” was raised immediately after the Appellant was arrested, the Respondent’s Counsel refuted the claim as being an afterthought and contended that the Appellant raised the defence for the first time in his defence at the trial. The defence of alibi being a radical one the facts of which are only known to the accused, Counsel argued that the details and particulars of such facts must be disclosed by the accused at the earliest opportunity to enable the Police investigate same, for which he referred to EYISI v. STATE (200) 15 NWLR (Pt.691) 555 @ 595 ? 596 G ? H, NWATURUOCHA v. THE STATE (2011) 3 SCNJ 148, and that

while the ultimate and legal burden of proving the guilt of the accused rests with the prosecution, the evidential burden of bringing evidence about the ‘alibi’ rests with the accused, citing in support OZAKI v. THE STATE (1990) 1 NWLR (PT.124) 116 Para F-G. we were urged to hold that the trial Judge was right in his evaluation.

Alibi, which is a Latin word or phrase stems from a combination of two words “alius” and “ibi” or “ubi” meaning “other”, and “there” or “where” and when put together, linguistically, mean “elsewhere”. STATE v. AZEEZ & ORS (2008) 4 SC 188, NDIDI v. STATE (2005) 17 NWLR (Pt.953) 17.

In criminal Law and procedure, alibi means nothing more than “elsewhere” that the accused was elsewhere, or somewhere else at the time of the commission of the crime and was not at the scene of crime. Alibi is a defence based on the physical impossibility of the defendant’s guilt by placing the defendant in a location other than the scene of crime at the relevant time. See the Blacks Law 8th Edition page 79 ATTAH v. STATE (2010) 10 NWLR (Pt.1201) 190 SC, NWABUEZE & ORS v. STATE (1988) 7 SC (Pt.11) 157. In this

sense, alibi is a complete and radical defence the successful plea of which completely exonerates the accused person from the charge against him; the logic being that he could not possibly be at the scene of crime at the time of the commission of the crime as he was elsewhere at the same time. In other words, the accused could not have committed or participated in the commission of the offence since he cannot possibly be at two different places at the same time.

?However, to avail the accused, alibi being a radical defence, the facts of which are best known to the accused, the accused person must raise the defence at the earliest opportunity, after his arrest. He must then furnish the Police with the full details and particulars of the time, the place and with whom he was and the activity(ies) he was doing and in whose company or presence the activity was done at the stated time, to afford the Police the opportunity of investigating the alibi. NSOFOR v. STATE (2002) 10 NWLR (Pt.775) 274 CA, OGOALA v. STATE (1991) 3 SC 80, AREMU v. THE STATE (1991) 7 SCNJ 296, OKOSI v. THE STATE (1989) ALL NLR 170.

Failure to investigate the alibi when timeously raised with

the necessary details and particulars would be fatal to the prosecution case, render a conviction unsatisfactory and may lead to an acquitted. NWATURUOCHA v. STATE (supra), NWOGU v. THE STATE (1986) 4 NWLR (PT.35) 438, IKEMSON v. STATE (1989) 4 NWLR (PT.110) 455.

However, the prosecution is not bound or obliged to investigate an alibi where the accused is fixed or pined at the scene of crime OCHEMAJE v. STATE (2008) 15 NWLR (Pt.1109) 52, ARCHIBONG v. STATE (2007) 143 LRCJV 228, 266, NDUKWE v. STATE (2009) 2-3 SC 7.

or where the alibi is not timeously raised AKAN v. STATE (1991) 5 SCJJ, 1, IKEMSON v. STATE (1989) 4 NWLR (PT.110) 455 and in the case of the latter, the burden of proof is shifted to the accused who raises the defence for the 1st time at trial, to prove what he asserts. IBRAHIM v. STATE (1991) 5 SCNJ 129.

Applying these principles to this appeal, while Counsel to the Appellant contends that the Appellant timeously raised the defence of alibi immediately he was arrested by the Police, Respondent’s Counsel claims that the defence was raised for the 1st time during trial.

Looking through the evidence of the Appellant as

reproduced at pages 149-150 of the record, the Appellant’s position is that he gave a statement to the Police at Funtua with respect to a certain fight for which some persons including himself were arrested but that statement was not the one tendered.

The Respondent’s evidence on record on the other hand is that on 23/12/2001 the Katsina State CID received a signal from C.I.D Minna that the Appellant had been arrested and on the same day, he was brought to C.I.D. Office Katsina State. His statement, Exhibits 10A and 10B?were taken on the same 23/12/2001 at the C.I.D. office, Katsina by PW3, Inspector Yunusa Adamu. (See pages 48-49, 52,78-79 and 84 of the record).

?These pieces of evidence as gleaned from the referred pages of the record, shows that the Appellant was brought straight from C.I.D. Minna to C.I.D. Katsina on the same day. There is no suggesting in the evidence of the prosecution that the Appellant was 1st taken to or detained at Funtua. Instructively, these pieces of evidence by the prosecution witnesses remain unchallenged. The defence did not in cross-examination, confront the prosecution witnesses on this claim that the Appellant made

an earlier statement at Funtua or anywhere else in respect of the charge against him. There is therefore nothing to support the Appellant’s claim that he raised the defence at pre-trial stage in an earlier statement made to the Police concerning the crime with which he was charged.

Furthermore, the alibi itself as raised by the Appellant is not precise but vague. This is what he said inter alia:-

“It was a certain (?) when I went to the house of Alhaji Bawa at Hulakundi for a naming ceremony, where a fight took place……Thereafter Police came and arrested 5 (Five) of us….”

It is really not clear from the above quoted evidence of the Appellant or any part of his evidence whether the alleged incident of the fight occurred at the same day and time with the commission of the crime with which he was charged. His evidence is also bereft of the necessary particulars and details which would have facilitated the Police to investigate the claim as the Police is not expected to go on a wild goose chase in order to investigate the alibi. Where in Hulakundi is the house of the Alhaji Bawa located? Who is the Alhaji Bawa, who were the 4 persons involved

in the fight? And who among them lost his hand,

what role if any, did the Appellant play in the fight? The absence of all these particulars and details makes the alibi imprecise, vague or nebulous and thereby unnecessary to be investigated. See IKEMSON v. STATE (Supra,), RASAKI v. STATE (2017) LPELR 4859 (CA). In OCHAMAJE v. STATE (2008) 15 NWLR (Pt.1009) 57, the Supreme Court per Niki Tobi JSC held:-

“A defence of alibi to be worthy of investigation should be precise and specific in terms of the place that the accused was and the person or persons he was with and possibly what he was doing there at the material time”.

The net effect of the assessment of the evidence on record is that the Appellant did not timeously raise the defence of alibi at the earliest time when he was arrested and first confronted with the allegation of the commission of the crime, to afford the Police (Respondent) the opportunity of investigating the substance or veracity of the defence.

Raising the defence during trial is tantamount to laying a siege to ambush the prosecution which entitles the prosecution to validly ignore the defence thereby relieving the

Respondent the duty of disproving same and shifting the onus of proof to the Appellant to prove what he asserted. The learned trial Judge was therefore well grounded in Law in placing the onus of proving the alibi on the Appellant and in holding that the Appellant failed to discharge the onus. The result is that this issue is resolved against the Appellant.

ISSUE NO. 3

WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE RESPONDENT PROVED ITS CASE BEYOND REASONABLE DOUBT BEYOND AGAINST THE APPELLANT.

Under his issues 2 and 3 as raised in his brief of argument, Counsel for the Appellant re-stated the presumption of innocence Constitutionally guaranteed to an accused person in Section 36 (5) which can be rebuted only by proving an alleged offence beyond reasonable doubt against the accused in compliance with Section 138 (1)(2) of the Evidence Act. He listed the ingredients all of which the Respondent must prove in a charge of armed robbery to be:-

(i) There was a robbery or series thereof armed robbery

(ii) That the robbery or each of the robbery was armed robbery.

(iii) That the accused took part in the robbery,

GABRIEL v. STATE (2010) 6 NWLR (PT.1190) 320 G, KAYODE v. STATE (2012) 11 NWLR (PT.1312) 523, 540-541 G – A.

It was posited that neither the weapons recovered and tendered in evidence were linked to the Appellant nor was the Appellant positively identified by any of the prosecution witnesses as one of the killers of the deceased or linked by any credible evidence to the crime, all of which call for caution and create doubt in the prosecution’s case. He relied on ANI v. STATE (2009) 16 NWLR (PT.1168), ARCHIBONG v. STATE (2006) 5 SC (PT.11) 1, 8 and OJUKWUN & ORS v. STATE (2002) FWLR (PT.98) 943, 951.

In addition, and to fortify his stand, Counsel contended that the arrest of the Appellant was effected through the complaint of one Idris Abdullahi who never appeared throughout the trial. Similarly, the method by which Exhibits 10A and 10B were extracted totally violated Sections 28 and 29 of the Evidence Act and weakens the Respondent’s case as it creates a doubt which should, in any minute form, be resolved in favour of the Appellant – GABRIEL v. STATE (supra). We were urged to hold that the trial Judge was wrong to have convicted the Appellant.

Reacting to these arguments and contending that each and every ingredient of the offence of armed robbery as listed by the Appellant’s Counsel was proved beyond reasonable doubt against the Appellant, Respondent’s Counsel posited on the authority of IGIRI v. STATE (2012) 16 NWLR (Pt.1327) 522, 541 B that the prosecution’s case can be proved by any of these three ways, to wit:-

(a) Evidence by eye witness;

(b) The confession of the accused;

It was the argument of Counsel that the evidence of PWI that she saw one of the people asking her husband for money, that she heard gun shots three times, of PW2 that he was woken by gunshots, of PW6 that she saw them shooting the deceased and removing money and that she recognized the last one, light in complexion (the Appellant) as well as the contents of the Exhibit 10B proved that there was robbery, that it was an armed robbery and that the Appellant was fixed at the scene of crime as one of the robbers.

It was also posited that a confession, such as Exhibit 10B, is the best evidence in proof of a crime and where available, relieves the prosecution of any further

proof FRN v. IWEKA (2011) 12 SCNJ 1, 809. The nature of corroboration required according to Counsel, is any evidence even if circumstantial that connects the accused to the commission of the crime which in this case is present in the evidence of PW1, 2 and 6. He referred to DURUGO v. STATE (1992) 7 NWLR (Pt.255) 525, C-D, SOLOLA v. STATE (2005) 2 NWLR (PT.937) 460, 485 C-D.

Counsel finally submitted that the Respondent proved its case beyond reasonable doubt and the learned trial Judge properly evaluated the evidence and urged upon us to affirm the decision of the trial Court.

It is clear from the argument canvassed by the Appellant’s Counsel that the Appellant’s central complaint under this issue is against the evaluation of the evidence by the learned trial Judge.

The firmly settled and appreciable principle of our Law is that evaluation of evidence and findings of facts are within the province of the trial Court which has exclusively been bestowed with that primary responsibility. It is the exclusive preserve of the trial Court to evaluate evidence presented before it and ascribe probative value to the evidence. The trial Judge does this

by receiving all the evidence presented and then assesses the received evidence to ascribe value to it. Explaining this duty of the trial Court, Oputa JSC in OLUFOSOYE v. OLUFEMI (1989) 1 SC (Pt.1) 29 said:-

“There is a duty on a trial Court to receive all available evidence on an issue. This is perception of evidence. After that, there is another duty to weigh that evidence in the con of the surrounding circumstances of the case. This is evaluation of evidence”.

?Evaluation of evidence entails and demands that the evidence adduced by both parties be assessed and weighed so as to give probative value or quality to it, and there must be on record how the Court arrived at its choice of preference of one piece of evidence to the other. ALAKE v. STATE (1992) 9 NWLR (pt. 265) 260 SC, ATTAH v. STATE (2009) 15 NWLR (Pt.1164) 284 (CA).Evaluation involves reviewing and criticising as well as estimating the evidence BASIL v. FAJEBE (2001) 11 NWLR (Pt.725) 592, MOGAJI v. ODOFIN (1978) 4 SC 91, is by this process of assessment of evidence and ascription of value to same that the Court can arrive at the proper decision of who to believe and who to disbelieve

or a reasoned preference of one piece or version of evidence to the other.

The Appellant therefore has the duty to show that the trial Court did not properly evaluate the evidence or its evaluation was

perverse or a wrong conclusion was drawn therefrom resulting in a miscarriage of justice.

The Appellant in this appeal was charged with the offence of armed robbery contrary to Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act.

?The indispensable ingredients of the offence of armed robbery which the prosecution must prove beyond reasonable doubt have been set out in a number of cases to be:-

(a) That there was a robbery or series of robberies;

(b) That the robbery was an armed

robbery; and

(c) That the accused person was the robber or took part in the robbery or robberies. All these 3 ingredients must co-exist before an accused person can be found guilty of the offence.

?”Robbery” means:-

“Stealing anything and at or immediately before or after the time of stealing, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained”.

?The word “arm” refers to any article made or adopted for causing injury to any person having it for such use by him and includes even a piece of wood, metal or stone capable of being used as an offensive weapon.

?It is now firmly settled that the guilt of an accused person may be proved either by the evidence of a person who witnessed the commission of the offence (eye witness), confession of the accused or by circumstantial evidence.

IGIRI v. STATE (2012) 16 NWLR (PT.1327) 522, 541 B, HARUNA v. A.C.F. (2012) LPELR – 7821 (SC).

On the 1st and 2nd ingredients of the offence that there was a robbery and the robbery was with arms, the graphic evidence of PW1, that she saw about seven people one of who demanded money from her and from the deceased that she heard gun shots 3 times and saw blood gushing out from her husband’s arm, the evidence of PW2 who was woken by gun shots and saw his father shot, and that of PW6 who saw the persons beating her husband with sticks, and later shot and which evidence remain unchallenged, clearly support the finding of the Lower Court at page 207 lines 12-17 of the record, and proved these two ingredients of the offence. The trial Judge cannot be faulted.

However, real bone of contention is with the 3rd ingredient, that the Appellant was one of the robbers and with all seriousness, this is the crux of the issue upon which this appeal was vigorously argued. It is the contention of the Respondent’s Counsel that the Appellant confessed in the Exhibits 10A and 10B that he was one of the robbers and was also physically fixed at the scene of crime by

PW6.

Exhibits 10A and 10B as found earlier in this Judgment were retracted by the Appellant. It is therefore desirable that before the Court would believe and act upon the confession, same must be credible and there should be outside the confession, some evidence however slight to make it probable that the confession was true. It should thus be subjected to the following acceptability tests:-

“i. Is there anything outside the confession to show that it is true?

ii. Is it corroborated?

iii. Are the relevant statements made in it of facts true as far as they can be tested?

iv. Was the prisoner one who had the opportunity of committing the murder?

v. Is hIs confession possible?

vi. Is it consistent with other facts which have been ascertained and have been proved”

On this requirement, the learned trial Judge held at pages 208-209 of the record that:-

“The confession of all the accused persons is quite direct and positive and there is ample evidence outside their Confessional statement which is quite credible and corroborative which make it probable that the confession is true and correct taking cognizance of the

testimony of PW1, 2 and 6. Thus this has also satisfied the requirements in the decision of Ikpe v. State (1995) 9 NWLR (Pt.421) 540 at 555”.

The question is whether the learned trial Judge was right in this finding.

The evidence of PWs 1, and 2 only go as far as proving that there was an armed robbery which they witnessed.

It is only the evidence of PW 6 that is relevant to the issue at stake, which is, whether the Appellant was fixed at the scene of crime as one of the robbers.

The evidence of PW6 in chief at (page 61 of the record) is that she saw the accused persons beating her husband with sticks and then shooting him with a gun and removing money.

In cross-examination, the witness said,

“Before the day of incidence I don’t know any of the accused persons.

Suleiman who is my child was about 16 years old. We were not in the same room with him, I was not even with my husband, I was in my room. I didn’t follow any them into my husband room.

I cannot specifically point any of the accused persons that shot my husband.

My husband died about 30 minutes after the incidence (shooting). They were many but the only one

I recognize is the last accused who is light in complexion”.

(1) Circumstances in which the eye witness saw the suspect ? was it in difficult condition.

(2) The length of time the witness saw the suspect or defendant, a glance or longer

observation

(3) The opportunity of close observation

(4) Previous contact between the two parties.

(5) The lighting condition see Ochiba v. The State (2011) LPELR 8245 (SC), Etisi v. State (2002) 15 NWLR (Pt.697) 55, Ikemson v. State (supra), Sunday Ndidi v. State (2007) All FWLR (Pt.381) 1617.

The question whether an accused person was properly identified as a party to the commission of a crime is a matter of fact to be determined on the basis of the evidence available before the trial Court and each case depends on its facts and peculiarities. Where the question of correctness of identification is raised or arises, the Court has the duty to thoroughly scrutinize the evidence and if at the end of the examination, the identification evidence is found to be poor, weak or unsatisfactory, a doubt should be created in the mind of the Court which must be resolved in favour of the

Appellant.

The evidence on record in this appeal shows that the robbery took place at about 2.00am. The evidence of PW6 in cross-examination as earlier reproduced is that she did not know any of the accused persons before the incident, she did not follow any of them to her husband’s room. She could not specifically point any of the accused persons who shot her husband. They were many but the only one she recognised is the last accused who is light in complexion (the Appellant).

Strikingly, this evidence of specific identification of the Appellant was not given in evidence in chief when the witness had opportunity to state all what she knew or had to say on the matter, but was given in cross-examination by the witness who had admitted not ever knowing the Appellant before the incident. The only reason stated by the witness for identifying the Appellant is that he is light in complexion.

Identification evidence in condition such as the one at hand where the robbery took place in the night and the witness had never known the Appellant before the incident to be credible and relied upon, must be very positive, clear, direct and point unequivocally

that it is the accused and no one else who was seen committing the offence. The evidence must be given by the eye witness at the earliest opportunity to forestall such evidence being given as an afterthought to implicate an innocent person. See Bozin v. State (1985) 2 NWLR (Pt.8) 465. In this case, the earliest time for the PW6 when testifying in the witness box, is her evidence in chief, had she been certain with a degree of exactitude about the identity of the Appellant.

The witness did not state how she was visually able to identify the Appellant at that hour of the night, 2.00am, she did not say whether there was any lighting, or how closely and for what length of time she observed him, or was it just at a brief glance? what was the Appellant wearing? Was there any physical contact between the Appellant and herself? It is also to be stated that whatever observation or glance the witness had of the robbers was done in difficult and frightening circumstance. Furthermore, no identification parade was conducted to ascertain whether the witness could identify the Appellant in the midst of other light complexioned persons. Additionally, PW1 who was the

other eye witness emphatically mentioned both in examination in chief and in cross-examination that she could not identify any of the robbers.

In this circumstance, the quality of the identification evidence by PW6 cannot be said to be credible, positive and direct, but manifestly weak and calls for caution. In sounding a word of caution to the trial Court, the Supreme Court in Alabi v. State (1993) 7 NWLR (Pt.307) 511 held that;

“In a case where the witness had a fleeting glance of the accused, during which he could not even identify the dress the accused was wearing, it calls for caution before the trial Court could convict. It is relevant to establish how long the witness have the accused under observation and whether the distressed condition of the witness … would be an impediment to clear identification of the accused.

The angle where the witness was standing during the commission of the crime which facilitated his perception of the scene should also be considered”.

See also Ikara v. State (2012) LPELR 15533 (SC) per Muhammed JSC.

It is trite that the evidence of PW6 which is deficient, weak and insufficient and which must be

treated with caution cannot corroborate the Appellant’s retracted confession which requires corroboration. See OBI v. STATE (1972) 1 SC, GWANGWAN v. STATE (2012) Vol. I WRN 57, 85.This is so because evidence in corroboration is an independent evidence which affects the accused and connects or tends to connect the accused with the commission of the crime in some material particular not only that the crime has been committed but also that the accused committed it. It is thus an independent evidence outside the evidence requiring corroboration. OKABICHI & ORS v. THE STATE (1975) 1 ALL NLR 17.

As to whether there is any other evidence outside the confessional statements and the evidence of PW6 to support or verify the truth of the confession, it is instructive to state that the Appellant and the other 5 persons tried together with him, were all arrested on the basis of the information by one Idris Abdullahi who gave the names of about 16 armed robbers operating between Kaduna and Katsina. (Page 40 of the record). Though the vehicle suspected to have been used in the commission of the crime was traced to the Idris Abdullahi, he was neither charged along

with the Appellant nor called as a witness. None of the weapons allegedly used in the commission of the offence was linked to the Appellant. Indeed, PW5 specifically told the Lower Court that he did not suspect that the vehicle was used in the commission of any crime and could not say who put the weapons in the vehicle or their owners. The Appellant was not arrested at the scene of crime nor properly identified as one of the robbers.

Thus, contrary to the finding and conclusion arrived at by the learned trial Judge, I am unable to find any cogent evidence outside Exhibits 10A & 10B corroborating the confession. The trial Judge was therefore wrong in his finding and conclusion at pages 208-209 of the record that Exhibits 10A and 10B were corroborated; taking into cognisance, the evidence of PWs 1, 2 and 6. This finding and conclusion is not supported by the evidence on record. The evidence of PW6 which failed to properly establish the identity of the Appellant cannot corroborate Exhibits 10A and 10B.

The Law is that, where as in this appeal, there is a failure by the prosecution to establish that the accused was indeed the person who committed the

offence, such a failure disentitles the trial Court from convicting and an Appellate Court from affirming such erroneous conviction, see Supreme Court FABIYI v. STATE (2015) 18 NWLR (PT.1490) 80, @ 94 ? 95 H ? A per Muh’d JSC.

Further, where a confessional statement subjected to the acid acceptability tests fails to pass the test, a doubt should be created in the mind of the Court as to the truth of the confession to make it unsafe to convict solely upon the confession.

The benefit of doubt, the trial Court ought to have resolved in favour of the Appellant, and having failed to do so, this Court is bound to interfere, and in line with the age long principle of Law and the directive of the apex Court in a long line of cases, this Court resolves the doubt in favour of the Appellant. See Chukwu v. State (1996) 7 NWLR (Pt.463) 186 per Belgore JSC, as he then was.

MUHAMMED & ORS v. THE STATE (2013) LPELR – 22352 (CA), SOLOLA v. STATE (Supra), KALU v. STATE (1988) 4 NWLR (Pt.90) 503. After all, as Rhodes Vivour JSC in Ogudo v. State (Supra,) put it, the adage that it is better for nine guilty persons to go free than one innocent

person to be sent to his grave holds very true to this day.

In the circumstance, I give the benefit of my doubt in favour of the Appellant. The result is that there is merit in this appeal and it is hereby allowed. The decision of the Lower Court convicting and sentencing the Appellant to death is set aside. The Appellant is accordingly discharged and acquitted.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Amina Audi Wambai, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein. I wish to add a few comments.

The Appellant was charged, along with five other persons, with one count of armed robbery contrary to the provisions of Section 1 (2) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of Federation 2004. The Appellant was the sixth accused person. It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and

this is, more often than not, the prosecution.

Where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts.

?Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal – Sabi v. State (2011) 14 NWLR (Pt.1268) 421, Iwunze v. Federal Republic of Nigeria (2013) 1 NWLR (Pt.1324) 119, Njoku v. State (2013) 2 NWLR (Pt 1339) 548, Osuagwu v. State (2013) 5 NWLR (Pt.1347) 360, Ajayi v. State (2013) 9 NWLR (Pt 1360) 589.

Section 1 (2) of the Robbery and Firearms (Special Provisions) Act 1990 states that armed robbery occurs where at the time of a robbery, the offender is armed with any firearms or any offensive weapon or is in company with any person so armed or at or immediately before or immediately after the robbery, the said offender wounds or uses

any personal violence to any person.

?The Courts have held that the essential ingredients that the prosecution must prove in order to secure a conviction for armed robbery are (i) that there was indeed a robbery of series of robbery; (ii) that the robbers were armed with dangerous weapons; and (iii) that the accused defendant was the robber or one of the robbers – Osetola v. State (2012) 17 NWLR (Pt.1329) 251, Osuagwu v. State supra, Abiodun v. State (2013) 9 NWLR (Pt.1358) 138, Ajayi v. State supra.

It is settled law that a case can be proved beyond reasonable doubt either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive or by a combination of any of the three modes – Emeka v. State (2001) 14 NWLR (Pt.734) 666, Nigerian Navy v. Lambert (2007) 18 NWLR (Pt.1066) 300, Ilodigwe v. State (2012) 18 NWLR (Pt.1331) 1, Oguno v. State (2013) 15 NWLR (Pt.1376) 1 and Babatunde v. State (2014) 2 NWLR (Pt.1391) 298, Umar v. State (2014) 13 NWLR (Pt.1425) 497.

A read through records of appeal shows that

the Respondent relied on a confessional statement, the Hausa and English versions of which were tendered as Exhibits 10a and 10b, in proving the case against the Appellant and the Appellant was said to have made the confessional statement at the State CID. The records also show that the Lower Court placed reliance on the said confessional statement to convict and sentence the Appellant. The records of appeal show that when the Respondent made to tender the confessional statement in the course of trial, Counsel to the Appellant objected to its admissibility on the ground of involuntariness and consequent on which the Lower Court conducted a trial within trial. In his testimony in the trial within trial, the Appellant stated that he was subjected to serious beatings by the policemen at the State CID and he was forced to make the statement and what he told the policemen was not true and that on re-examination the Appellant stated that he did not give any statement to the Police at State CID. Again, in his oral testimony as the sixth defence witness, the Appellant stated that he was forced to thumbprint the statement and that he did not know the contents of the

statement.

The law is that an accused person who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true by showing any of the following (i) that he did not in fact make any such statement as presented; or (ii) that he was not correctly recorded; or (iii) that he was unsettled in mind at the time he made the statement; or (iv) that he was induced to make the statement – Hassan v. State (2001) 15 NWLR (Pt.735) 184, Kazeem v. State (2009) WRN 43, Osetola v. State (2012) 17 NWLR (Pt.329) 251, Okanlawon v. State (2015) 17 NWLR (Pt.1489) 445. The Appellant in the instant case denied ever making the statement, both when the statement was being tendered and in his oral evidence in his defence. The Appellant thus retracted the said confessional statement. It is settled law that where an accused person retracts his confessional statement, as the Appellant did in this case, what is required is that before a trial Court would believe and act on the confession it should subject the confessional statement to the following tests:

i. whether there is anything outside the confession which shows that it

may be true;

ii. whether it is corroborated in any way;

iii. whether the relevant statements of facts made in it are mostly true as far as they can be tested;

iv. whether the defendant had the opportunity of committing the offence;

v. whether the confession is possible; and

vi. whether the alleged confession is consistent with other facts that have been ascertained and established.

See the cases of Osuagwu v. State (2009) 1 NWLR (Pt.1123) 523, Kabiru v. Attorney General, Ogun State (2009) 5 NWLR (Pt.1134) 209, Nwokearu v. State (2010) 15 NWLR (Pt.1215) 1, Galadima v. State (2012) 18 NWLR (Pt 1333) 610 and Okanlawon v. State (2015) 17 NWLR (Pt.489) 445.

Now, corroborative evidence required to verify the contents of a confessional statement does not need to be direct evidence that the accused person committed the offence nor does it need to amount to a confirmation of the whole account given by the accused defendant in the statement and that it is sufficient even if it is only circumstantially connecting or tending to connect him with its commission Queen v. Obiasa (1962) 2 SCNLR 402, Achabua v. The State (1976) 12 SC

63, Durugo v. State (1992) 7 NWLR (Pt 255) 525.

?Corroborative evidence is evidence given by an independent witness which confirms in some material particular, not merely that the crime was committed, but that the crime was committed by the accused person – Omisade v. The Queen (1964) NSCC 170, Okabichi v. State (1975) 3 SC 96, Ogugu v. State (1994) 9 NWLR (Pt.366) 1, Ogunbayo v. The State (2007) 8 NWLR (Pt.1035) 157. Thus, to amount to corroborative evidence, the independent evidence must corroborate the evidence in some respects material to the charge in question – Ezigbo v. The State (2012) LPELR-7855 (SC).

As stated earlier, the Respondent called eight witnesses. Reading through the testimonies of all the prosecution witnesses, except for the sixth prosecution witness, none of them led any independent evidence, outside the confessional statement, showing that the Appellant committed or participated in the commission of the crime leading up to the charge against him. None of the Investigating Police Officers gave evidence outside the tendering of the confessional statement implicating the Appellant in the commission of the offence. The Appellant was not

arrested at the scene of the crime. There were three eye witnesses to the armed robbery who gave evidence as the first, second and sixth prosecution witnesses. The first and second prosecution witnesses did not positively identify the Appellant as one of the persons who took part in the robbery. The sixth prosecution witness did not also positively identify the Appellant as one of the participants in the armed robbery in the course of her examination in chief, but under cross-examination she testified that their assailants were many and “the only I recognized is the last accused person who is light in complexion.? The Appellant was the last accused person.

This singular evidence of the sixth prosecution witness raised the issue of identification. Identification generally, is evidence tending to show that the person charged with an offence is the person who was seen committing the offence. The law is that whenever the trial Court is confronted with evidence of identification, it is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused person in question was actually the person or one of the persons who

committed the offence with which he is charged – Okanlawon v.?State (2015) 17 NWLR (Pt.1489) 445. Where the quality of the evidence of identification of the accused in the commission of the offence with which he is charged is poor, the accused person should be acquitted unless other evidence abound in support of the identification – Ikaria v.?State (2014) 1 NWLR (Pt.1389) 639. In ascribing probative value to the evidence of an eye witness in the matter of identification of a criminal, the Court must meticulously consider the following (i) circumstances in which the eye witness saw the defendant; (i) the length of time the witness saw the defendant; (iii) the lighting conditions; (iv)?the opportunity of close observation; and (v) the previous contacts between the two parties – Ndidi v.?The State (2007) All FWLR (Pt.381) 1617.

?In the instant case, the sixth prosecution witness testified that before the day of the armed robbery incident, she did not know the Appellant. The armed robbery in question took place around 2am and the sixth prosecution witness, and the other eye witnesses, did not testify as to the lighting conditions at the scene of the crime and

there was no evidence on record as to the length of time the sixth prosecution witness observed the Appellant and for her distance, in terms of proximity to him, during the course of the robbery incident. There was no evidence on record that the sixth prosecution witness informed the Police at the time of the report of the robbery incident and for, at any time in the course of the investigation that she could identify the Appellant or any of the robbers and the Appellant was not arrested on the basis of any identification evidence. The feature by which the sixth prosecution witness identified the Appellant, ?his light complexion”, was too generic and not peculiar to the Appellant. The evidence of identification of the Appellant was thus weak, doubtful and suspect and did not constitute credible evidence. It is trite that evidence that is not credible cannot serve as corroborative evidence – Isah v. State (2007) NWLR (Pt.1049) 582, Ogudo v. State (2011) 18 NWLR (Pt.1278) 1.

In the instant case, therefore, there was no credible independent evidence outside the retracted confessional statement of the Appellant verifying the contents of the statement.

The Lower Court was wrong to have relied on the confessional statement to convict and sentence the Appellant. It is for this reason that I too find merit in this appeal and hereby allow it. I hereby set aside the judgment of the High Court of Katsina State in Charge No KTH/27C/2002 delivered by Honorable Justice Sanusi Tukur on the 27th of April, 2012 and the sentence passed thereon on the Appellant. I too order the discharge and acquittal of the Appellant.

OLUDOTUN ADEBOLA?ADEFOPE-OKOJIE, J.C.A.: I am in agreement with the lead judgment of my learned brother Amina Audi Wambai JCA that there is merit in this appeal. It is accordingly allowed. The conviction and sentence of the Lower Court are set aside and the Appellant discharged and acquitted.

Appearances

Appellant’s Counsel absentFor Appellant

AND

Abu Umar, SSC with him, M. S. Sheka, SC and M. U. Abdullahi, SCFor Respondent