ILYASU v. STATE
(2020)LCN/14283(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Monday, June 29, 2020
CA/K/325B/C/2016
Before Our Lordships:
Abubakar Datti Yahaya Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
BALA ALHAJI ILYASU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACTS OF THE TRIAL COURTS
It is a notorious fact that appellate Court ought not to interfere with findings of fact of trial Courts which had the unique opportunity of seeing and hearing the witnesses gives evidence and observing their demeanour in witnesses’ box. However, where such findings are in fact inferences from findings properly made, the Court of Appeal is in as good a position as the trial Court to come to a decision. See Fabunmi Vs. Agbe (1985) 1 NWLR (Prt 2) 200 at 314, Ukatta Vs. Ndinaeze (1997) 4 NWLR (Prt 499) 257 at 263 and The State Vs. Ajie (2000) 7 SC (Prt 1) 24 at 30-31.
An appellate Court will also interfere with findings of fact where such findings are perverse. And a decision is said to be perverse: –
(a) when it runs counter to the evidence, or
(b) where it has been shown that the trial Court took into account matters which it ought not have taken into account or shuts its eyes to the obvious, or
(c) when it has occasioned a miscarriage of justice.
See Incar Ltd Vs. Adegboye (1985) 2 NWLR 455. PER SHUAIBU, J.C.A.
MEANING OF A “CONFESSIONAL STATEMENT”
By virtue of Section 28 of the Evidence Act, a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. Once an accused person makes a statement under caution stating or admitting the offence charged, then that statement becomes confessional. See Kasa Vs State (1994) 5 NWLR (prt 1)124 at 140-141. In Nwachukwu Vs The State (2002) 7 SC (Part 1) 124 at 140 – 141 the Supreme Court has held that a free and voluntary confession of guilt by a prisoner, whether judicial or extra-judicial, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant a conviction without any corroborative evidence. Thus, as long as the Court is satisfied with the truth of a confession which is free and voluntary and in itself fully probable, such confession alone is sufficient to support conviction without corroboration. PER SHUAIBU, J.C.A.
THE TEST TO BE APPLIED TO DETERMINE THE NATURE AND EXTENT OF CORROBTORTAION
The above being direct, positive and unequivocal do not ordinarily requires corroborative evidence in order to support conviction. The test to be applied to determine the nature and extent of corroboration is to establish that the evidence is an independent testimony that affects the accused by connecting or tending to connect him with the crime. Thus, the corroborative evidence required needs not to be direct evidence linking the accused person to the commission of the offence. It is enough even if it is only circumstantial and connects or tends to connect the accused with its commission. See State Vs Gwangwan (2015) 13 NWLR (Prt 1477) 600, Durugo Vs State (1992) 7 NWLR (Prt 255) 525 and State Vs Yahaya (2019) 13 NWLR (Prt 1690) 397 at 428-429. PER SHUAIBU, J.C.A.
A VOLUNTARY CONFESSIONAL STATEMENT
A confession, if voluntary is deemed to constitute a relevant fact as against only the person who made it. As a corollary, the Courts are bound to reject an accused person’s confession which eventuates from torture, duress, threat or inducement. See Nsofor Vs State (2004) 18 NWLR (Prt 905) 74, Saidu Vs State (1982) 4 SC 41, Gbadamosi Vs State (1991) 6 NWLR (Prt 196) 182, Dawa Vs State (1980) 8 11 SC 236 and Ofordike Vs State (supra). PER SHUAIBU, J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Katsina State, Coram I. B. Ahmed J delivered on 28th January, 2016 wherein the appellant was convicted and sentenced to death for armed robbery.
A summary of the facts leading to this appeal as could be gleaned from the record of appeal show that one Alhaji Sani Maitsani who gave evidence as PW2 and his immediate family members were on the 13th day of February, 2011 attacked and robbed of the sum of N34,480.00 and other valuable items. That in the process of the robbery operation, the armed men who were armed with weapons namely; machetes, knives, sticks and guns, shot the said Alhaji Sani Maitsani on the thigh and was rushed to the hospital where he was treated and discharged after spending two weeks on admission.
At the trial, the prosecution paraded ten witnesses and tendered seven Exhibits that is, the extra-judicial statements of the appellant and his co-accused. The appellant and other co-accused, each testified in their defense but called no other witness. At the close of the case, both learned counsel
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addressed the Court. The learned trial judge thereafter delivered his judgment on 28th January, 2016 whereupon he convicted and sentenced the appellant amongst others to death by hanging.
Dissatisfied with the judgment, the appellant appealed to this Court through an amended notice of appeal filed on 26/2/2018. The said amended notice of appeal contains four grounds of appeal which the learned counsel for the appellant has distilled three issues for the determination of this appeal.
On the 4th of May, 2020 when this appeal was argued, learned counsel for the appellant, Agada Elachi, Esq identified and adopted the appellant’s brief of argument filed on 24/9/2019 in which the three issues for determination are as follows: –
1. Whether having regard to the failure or refusal of the respondent to tender a single exhibit out of the 9 listed in the proof of evidence, stated to have been allegedly used by the appellant in carrying out the offence of armed robbery, the lower Court was not wrong in holding that the respondent proved her case of armed robbery against the appellant, beyond reasonable doubt. (Distilled from ground 1)
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- Whether from the available evidence, the lower Court was not wrong in holding that all the ingredients of the offence of armed robbery was proved against the appellant without properly evaluating the available evidence in consequence of which whether the decision is perverse. (Distilled from grounds 2 and 5)
3. Whether the lower Court was wrong in admitting and relying on Exhibits 5A, 5B, 7A and 7B. (Distilled from ground 3)
In the respondent’s brief of argument filed on 4th May, 2020 but deemed as properly filed on 4/5/2020, learned Director of Public Prosecutions, Ministry of Justice, Katsina State, Abdur-Rahman Umar, Esq leading Abubakar Idris, State counsel adopted the respondent’s brief of argument in urging this Court to dismiss the appeal. He adopts the appellant’s three issues.
Proffering argument on the first issue, learned counsel for the appellant submits that the failure and/or refusal of the respondent to tender a single Exhibit out of the 9 listed in the proof of evidence amount to withholding evidence under Section 167(d) of the Evidence Act, 2011. Thus, the lower Court was wrong in holding that the respondent as
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prosecution has proved its case beyond reasonable doubt against the appellant. He contend that where physical evidence such as guns, money, machetes etc were recovered and also available to prove the ingredients of the alleged armed robbery but yet the respondent failed to tender such evidence, it means that the production of such exhibits would be unfavourable to it and hence the reason for the failure to produce them. He referred to Esangbedo Vs State (1989) 2 NNSCC (Prt 111) 23 at 30 to the effect that the burden in criminal cases must be discharged beyond reasonable doubt.
In response to the above submission, learned counsel for the respondent submits that the failure was not due to the fault of the prosecution but that the circumstances of the case made it impossible to tender the said Exhibits having had its case closed without taking the relevant witness. He referred to pages 96 and 97 of the record in contending that the trial Court closed its case despite the fact that it is the failure of Court’s registry to serve the said witness and hence its inability to tender the listed physical evidence.
Still in argument, learned counsel
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submits that there is no legal obligation on prosecution that it must tender or produce offensive weapons used in committing the offence charged. He referred to State Vs Abubakar (2019) 6 NWLR (Prt 1668) 346 at 355.
In further argument, learned counsel submits that what evidence or Exhibits to tender or witness to call in order to prove the charge against an accused lies solely at the discretion of the prosecution and not the defence. Thus, the latter cannot force the prosecution to tender particular Exhibit or evidence. He referred to Busari vs. State (2015) 5 NWLR (Prt 1452) 343 at 369.
The appellant’s contention here is that the failure of the prosecution to tender the physical evidence recovered as a result of the alleged armed robbery namely the money, weapons and other sundry items had diminished its case and therefore the trial Court was wrong to have held that the prosecution had proved its case beyond reasonable doubt against the appellant. And that had this physical evidence been tendered, same would have been unfavourable to the prosecution.
It is settled in all criminal trials, the burden of proving the guilt of an accused
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person rests on the prosecution, which has to prove the case beyond reasonable doubt. Proof beyond reasonable doubt means establishing the guilt of an accused person with compelling and conclusive evidence. It does not means proof beyond all doubts or all shadow of doubts, or proof to the hilt. Consequently, if the evidence is strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible” the case is proved beyond reasonable doubt. See Akinlolu Vs State (2016) 2 NWLR (Prt 1497) 503, Oseni Vs State (2012) 5 NWLR (Prt 1293) 35, Shehu Vs. State (2010) 8 NWLR (Prt 1195) 112, Jua Vs State (2010) 4 NWLR (Prt 1184) 217 and Ofordike Vs State (2019) 5 NWLR (Prt 1666) 395 at 413.
Learned appellant’s counsel has contended that the respondent withheld the physical evidence which were recovered and are available at the time of the trial. The provision of Section 167 of the Evidence Act, 2011 empowers the Court to presume the existence of certain facts. For instance, subsection (d) of Section 167 provides: –
“Evidence, which could be and is not produce would, if
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produced, be unfavourable to the person who withholds it.”
Two questions need to be answered here. Did the respondent withhold the physical evidence and are the said physical evidence so crucial that the failure to tender them raise serious doubt as to the involvement of the appellant in the alleged armed robbery?
It is not in doubt that the physical evidence in question were available but the respondent argued that the inability to tender them was dictated by the circumstances beyond their control. At the resumed sitting of the trial Court on 3/4/2014, the prosecuting counsel applied for an adjournment to bring their last witness which request was vehemently opposed by the defence. The trial Court based on its earlier order to the effect that the prosecution must bring their remaining witnesses or have their case closed, the Court went ahead to close the case for the prosecution. Thus, the question as to whose responsibility was it to summon the remaining witnesses does not arise. It is absolutely the responsibility of the prosecution to bring their witnesses in Court.
Now, did the failure of the prosecution to tender these physical
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evidence adversely affected the case of the prosecution? I do not think so, taking into account the facts that the duty of the prosecution is to prove the charge against the accused and the choice of witnesses is the discretion of the prosecution which is unfettered. Likewise, there is no law that states that the prosecution must tender the weapons used in the robbery before a case of armed robbery can be proved beyond reasonable doubt against an accused person. See Ayinde Vs State (2019) 12 NWLR (Prt 1687) 410 at 428.
In the instant case, the appellant was clearly identified by PW2 as one of the armed robbers that attacked and shot him at the thigh. This in my view rendered the said physical evidence not so crucial to the prosecution’s case and the failure to tender them cannot be said to have raised any serious doubt as to the involvement of the appellant in the alleged armed robbery. I therefore resolved the first issue against the appellant.
On the second issue, learned counsel for the appellant submits that the testimony of PW1 to PW6 are at variance with one another as regards the number of those that allegedly robbed PW2 as well as their
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respective identity. He also contends that there was contradiction between the amounts stated on the charge. Thus, the testimonies of PW1-PW6 did not establish that the appellant participated in the alleged armed robbery.
He submits further that the testimonies of PW7-PW10 are mere speculation or at best hearsay in that the person who reported the alleged armed robbery, one Alhaji Yahaya Maitsani was their only source of investigations and was not even called to testimony. He thereafter contend that the evidence of following the foot prints leading to the arrest of the appellant was incredible and Courts are not permitted to act on incredible evidence. He referred to Abeke Vs State (2007) All FWLR (Prt 366) 644 at 653.
Respecting the appellant’s confessional statement, learned counsel submits that same is not direct, positive and unequivocal having regards to the testimonies of all the respondent’s witnesses and the evidence of the defence. More so, the appellant denied signing or making the said statements tendered by PW9 and PW10 respectively. He referred to Kim Vs State (1991) 2 NWLR (Prt 175) 622 at 635 in urging this Court not to
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attach any weight to these statements. He also contends that apart from the necessity of corroborative evidence outside the confession, it was unsafe to sentence the appellant to death based on a retracted confessional statement which was not endorsed by a superior police officer.
He submits that the lower Court did not evaluate the evidence adduced before it in arriving at the conclusion that the appellant committed the alleged robbery.
On his part, learned counsel for the respondent contend that PW2 was categorical that he saw the 2nd, 3rd (appellant) and 4th accused persons among the six of the armed robbers that went into his room. He added that he identified them by the use of his lantern and also for the fact that he already knew them having been living in the same village and thus very familiar with them since their childhood. He submits that an accused can be convicted on the evidence of a single witness if the witness can be believed. He referred to Mohammed Vs State (2019) 6 NWLR (Prt 1668) 203 at 222 – 223.
On the alleged contradictions on the number of armed robbers and the amount of money taken from PW2 with the figures on the
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charge sheet, learned respondent’s counsel submits that neither the figures nor the number of armed robbers as given by PW2 – PW6 is material enough to vitiate the charge particularly when the appellant was not misled by both the amount and number of the armed robbers. The fact in issue according to the learned counsel is that the appellant and others robbed their victims as evident in Exhibits 5A, 5B, 7A and 7B respectively. He referred to Gazzali Vs State (2019) 4 NWLR (Prt 1661) 98 at 117, Okpa Vs State (2017) 15 NWLR (Prt 1587) 1 at 32 and Akindipe Vs State (2012) 16 NWLR (Prt 1325) 94 at 133.
He also reiterated his earlier position that the prosecution is not duty bound to call one Alhaji Yahaya who reported the robbery incident to the police as it was not for the appellant to dictate to the prosecution who to call as witness for the prosecution.
Learned counsel submits further that the testimonies of PW7 and PW8 cannot be regarded as speculations and hearsay simply because the said Alhaji Yahaya was not called as a witness as both PW7 and PW8 testified on the role each played towards investigating the robbery incident reported by
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the said Alhaji Yahaya.
On the evidence of following the foot print leading to the arrest of the appellant, learned respondent counsel contend that same is not incredible but one of the means through which a crime can be detected. And to that extent, the case of Abeke Vs State (supra) is inapplicable.
On the legal efficacy of the appellant’s confessional statements, learned counsel for the respondent submits that the best evidence against an accused is his own confession and that the evidence of PW2 alone corroborated Exhibits 5 and 7 in some material respect. He further submits that taking an accused with his statement to a superior police officer to confirm its voluntariness is a matter of practice not law. He contends that while Exhibit 7 was not endorsed by a superior officer, the other statement that is, Exhibit 5 was duly endorsed by a superior police officer. In all, the respondent’s counsel submits that the respondent had led credible evidence that shows that the statement was true through PW2-PW6 that the alleged robbery involving the appellant indeed took place and the appellant had the opportunity of committing same.
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Thus, the trial Court had fully and adequately evaluated the testimonies of PW1-PW10 and analysed the questions and responses during cross-examination of each of the ten witnesses paraded by the prosecution as such the decision of the lowers Court is not perverse.
The appellant’s complaints here are that the lower Court did not adequately evaluate the evidence adduced and that the evidence of the prosecution including the purported confessional statements are deficient both in substance and in form. Thus, the judgment of the lower Court according to the learned appellant’s counsel is perverse.
It is a notorious fact that appellate Court ought not to interfere with findings of fact of trial Courts which had the unique opportunity of seeing and hearing the witnesses gives evidence and observing their demeanour in witnesses’ box. However, where such findings are in fact inferences from findings properly made, the Court of Appeal is in as good a position as the trial Court to come to a decision. See Fabunmi Vs. Agbe (1985) 1 NWLR (Prt 2) 200 at 314, Ukatta Vs. Ndinaeze (1997) 4 NWLR (Prt 499) 257 at 263 and The State Vs. Ajie (2000) 7 SC (Prt
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1) 24 at 30-31.
An appellate Court will also interfere with findings of fact where such findings are perverse. And a decision is said to be perverse: –
(a) when it runs counter to the evidence, or
(b) where it has been shown that the trial Court took into account matters which it ought not have taken into account or shuts its eyes to the obvious, or
(c) when it has occasioned a miscarriage of justice.
See Incar Ltd Vs. Adegboye (1985) 2 NWLR 455.
In the instant case, the learned trial judge did assemble, collated, assessed, discussed, evaluate the respective versions of the evidence led by the prosecution and rightly concluded in my view that the ingredients of the offence of armed robbery have been fully proved beyond reasonable doubt against the appellant. At pages 167-168 of the record of appeal learned trial judge concluded thus: –
“This Court therefore needs no further proof that all the Accused Persons participated in the robbery and that they were armed. In other words, nothing is left in the graphic account of the robbery incident as voluntarily given to the police at both Dutsinma Division and at the State CID.
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The onus upon the prosecution has been discharged through the respective statements of the accused persons and the eye witness accounts to some of the prosecution witnesses. Through each of these two means of proof the charge against all the accused persons have been fully proved.
That notwithstanding, I will proceed to consider the defence of the accused persons to see whether their own account is consistent with their own innocence to entitle them to be acquitted of the charge.”
The above findings being the aggregate of the evidence adduced by both the prosecution and the defence, devoid of any extraneous matters, such findings cannot by any stretch of imagination be said to be perverse. Also having properly evaluated all the evidence adduced by the learned trial judge, this Court has no justification in interfering with such findings.
Now turning to the specifics, the appellant complained of contradictions in the evidence of prosecution witnesses respecting the amount of money allegedly taken from PW2 and also the number of armed robbers that robbed PW2 together with his family members. On the face of the charge, the appellant and his
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co-accused were alleged to have robbed their victims of the sum of N34,480.00 as well as other sundry items. In his evidence in chief at page 50 of the record of appeal, PW2 said: –
“They pressed me to give them money and at that juncture I knew I had only the sum of N25,000.00 in N500.00Naira notes which I gave them…”
On the number of armed men, PW2 was emphatic that: –
“I saw six of them coming inside my room. I saw the 2nd, 3rd and 4th Accused Persons.”
What is discernible from the record is that both PW2, PW4 and PW5 were consistent that the robbers took away the sum of N25,000.00. As regards the number of armed robbers, I am of the view that each of the victim gave his or her own figures depending on their separate encounter as the evidence did not show that all the victims were in one place at a particular point in time. More so, the robbery operations do not permit giving accurate account as in this case.
It has long been laid down by a long chain of authorities that not every contradiction is fatal to the prosecution’s case save where such contradiction goes to the substance and materiality of a
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fact or facts in issue in the charge as to raise doubt in the mind of the Court. See Oduneye vs State (2001) 1 SC (Prt 1) at 15. I am therefore at one with the submission of learned counsel for the respondent that the so called contradiction in this case is really a matter of discrepancy of inconsequential nature to the fact in issue that the appellant and others robbed their victims. It ought safely to have been overlooked. I would myself unhesitatingly reject the wobbling submission of the appellant’s counsel in this regard.
The appellant’s counsel also attacked the confessional statements for failure to endorse same by the superior police officer and the absence of corroborative evidence which rendered it unsafe to convict on it.
By virtue of Section 28 of the Evidence Act, a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. Once an accused person makes a statement under caution stating or admitting the offence charged, then that statement becomes confessional. See Kasa Vs State (1994) 5 NWLR (prt 1)124 at 140-141. In Nwachukwu Vs The State
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(2002) 7 SC (Part 1) 124 at 140 – 141 the Supreme Court has held that a free and voluntary confession of guilt by a prisoner, whether judicial or extra-judicial, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant a conviction without any corroborative evidence. Thus, as long as the Court is satisfied with the truth of a confession which is free and voluntary and in itself fully probable, such confession alone is sufficient to support conviction without corroboration.
The statements of the appellant in the instant case are direct, positive and unequivocal. For instance, the appellant in Exhibit 7 stated as follows: –
“On Friday 12/02/2011 at about 1300hrs I was at our house when some of my friends namely, (1) Ori Dibbo “M” (2) Rabo “M” of the Western part of Oris Hamlet and three others whom I doesn’t know their names jointly met me, set to Alhaji Saini residence and robbed him some money and valuables out of which I enjoyed the sum of N200,000 as my commission. Among us Ori was equipped with a sophisticated Riffle and not locally made. On our arrival at the residence
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of Alh. Saini (the victim), I stayed outside the house and after the robbery operation the money were shared to us in the bush along Takwara Village (footpath) and at the time of the operation (Robbery) I was equipped with stick and knife.”
The above being direct, positive and unequivocal do not ordinarily requires corroborative evidence in order to support conviction. The test to be applied to determine the nature and extent of corroboration is to establish that the evidence is an independent testimony that affects the accused by connecting or tending to connect him with the crime. Thus, the corroborative evidence required needs not to be direct evidence linking the accused person to the commission of the offence. It is enough even if it is only circumstantial and connects or tends to connect the accused with its commission. See State Vs Gwangwan (2015) 13 NWLR (Prt 1477) 600, Durugo Vs State (1992) 7 NWLR (Prt 255) 525 and State Vs Yahaya (2019) 13 NWLR (Prt 1690) 397 at 428-429.
In the instant case, the evidence of PW2-PW6 have linked and connected the appellant with the commission of the robbery charged and therefore corroborated the
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appellant’s confessional statement in Exhibits 5 and 7.
On the requirement of taking an accused person with his confessional statement for endorsement by the superior police officer, I subscribe to the submission of the respondent’s counsel that it is not law but a matter of practice contained in the Judges’ rule. At any rate, Exhibit 5 was duly endorsed by a superior police officer.
I am also at one with the submission of the respondent’s counsel that there is no duty foisted on the prosecution to call a particular person as a witness. The duty of the prosecution as stated elsewhere in this judgment is to prove the charge against the accused person and the moment that duty is discharged, the Court can convict the accused person. See State Vs Olatunji (2003) 2-3 SC 85 AT 103. The failure of prosecution in this case to call Alh. Yahaya Maitsani who reported the robbery incident to the police was not detrimental to the prosecution’s case. It is not within the power of an accused person to dictate the witness or witnesses to prove the charge against him. If the evidence of the said Alh. Yahaya is very essential to the defence of
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the appellant, it is for the appellant to call him.
In the same vein, learned counsel for the appellant also alluded to the fact that the evidence of the prosecuting police officers namely PW7 – PW10 were either speculative or at best hearsay and therefore inadmissible. PW7-PW10 told the trial Court that they are police officers assigned to investigate the armed robbery hitherto reported by one Alh. Yahaya Hussaini of Maitsani Village in Dutsinma Local Government Area. The case was reported first to the Divisional Police at Dutsinma and later transferred to the state CID. PW7-PW10 are therefore Police Officers that investigated the case both at the Divisional and State Headquarters. The record of appeal shows that they gave evidence of the activities they carried out in the course of investigation and of their findings from the point and documentary evidence obtained interviews as well as their conclusion therefrom. The law is that such evidence is not, and cannot be classified as hearsay evidence and that it is direct and positive evidence and hence admissible. See Arogundade Vs The State (2009) All FWLR (Prt 469) 423, Olaoye Vs The State (2018)
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LPELR – 43607 (SC), Kamila Vs The State (2018) LPELR-43603 (SC), Anyasodor Vs The State (2018) LPELR – 43702 (SC) and FRN Vs Adamu (2018) LPELR – 46024 (CA). The lower Court was therefore right in relying on the evidence of the police officers and not regarding same as speculative or hearsay.
On the final note, the respondent’s counsel has submitted and I agree with his submission that the evidence of following the foot print leading to the arrest of the appellant is part and parcel of investigation process which is also a direct evidence which cannot be classified as incredible. In all, the second issue is resolved against the appellant.
On the third issue, learned counsel for the appellant contend that the appellant’s extra-judicial statement, Exhibits 5A -5b and 7A-7b were not voluntarily obtained as there was evidence of threat by the police to shoot him and also several beatings on his leg to compel him to thumbprint the exhibits.
In further contention, learned counsel argued that the appellant was not taken before the superior police officer which presupposed that there was no endorsement of the statements. He
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thus submits that the test of a voluntary statement does not allow compulsion on an accused. He referred to State Vs Rabiu (2013) 8 NWLR (Prt 1357) 585 at 606.
In response to the above, learned counsel for the respondent submits that the appellant’s statements were duly admitted by the trial Court after testing their voluntariness through trial within trial. He referred to the evidence of PWA and PWB in the course of the trial within trial which evidence according to the learned counsel were never discredited under cross-examination. Still in argument, learned counsel submits that the appellant having denied making Exhibits 5A and 5B, the issue of involuntariness did not even arise.
It is beyond any peradventure that no statement of an accused person is admissible against him unless it is shown by the prosecution to have been made voluntary. A confession, if voluntary is deemed to constitute a relevant fact as against only the person who made it. As a corollary, the Courts are bound to reject an accused person’s confession which eventuates from torture, duress, threat or inducement. See Nsofor Vs State (2004) 18 NWLR (Prt 905) 74,
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Saidu Vs State (1982) 4 SC 41, Gbadamosi Vs State (1991) 6 NWLR (Prt 196) 182, Dawa Vs State (1980) 8 11 SC 236 and Ofordike Vs State (supra).
The question of involuntariness, often, arises where as in this case the accused person alleges that he was threatened, tortured or induced in the making of a confessional statement. In other words, though, he made the statement, it was not a product of his free will since he was forced or induced to make it. See Olatunbosun vs State (2013) 11 NWLR (Prt 1382) 167.
Where the voluntariness of a confessional statement is in issue, the trial Court is under obligation to conduct a trial within trial to determine the veracity or otherwise of the claim. In Dairo Vs FRN (2015) LPELR – 24303 (SC), Nweze JSC at pages 44-45 said: –
“…the raison d’etre of the evolution of the mini trial or voire dire procedure is to arm the trial Court with a procedural mechanism for sifting the chaffs of involuntary and hence inadmissible evidence from the wheat of admissible evidence whose cogency and probative value are indubitable.”
The appellant in this case, had objected the admissibility of the
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statements credited to him both at the Divisional level and at the State CID on ground of involuntariness. The two sets of the appellant statements were subjected to sifting mechanism via trial within trial and after which the trial Court admitted and marked them as Exhibits 5A-5B and 7A-7B respectively. In overruling the objection of the appellant and his co-accused, learned trial judge restated the law that since the accused persons denied making any statement to the police, their confessional statements could still be admitted in evidence and that it is the weight to be attached to the statements that the Court would consider at the judgment stage. In his judgment at page 167, learned trial judge found as follows: –
“Moreover from the confessional statements of the Accused persons therein marked as Exhibits 1A and 1B for the 1st accused, Exhibits 2A and 2B for the 4th accused, Exhibits 3A and 3B for the 2nd accused, Exhibits 4A and 4B for the 2nd accused, Exhibits 5A and 5B for the 3rd accused, Exhibits 7A and 7B of the 3rd accused given both at Divisional Police Headquarters Dutsinma and at the State CID that the attackers which included the
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accused persons were armed with one weapon or the other and all of them participated in the robbery. The testimony of PW3, PW7 and PW8 in particular have given the required corroboration of the Accused Persons confessional statements referred above.”
He went further to conclude at pages 167-168 that: –
“This Court therefore needs no further proof that all the Accused Persons participated in the robbery and that they were armed. In other words, nothing is left in the graphic account of the robbery incident as voluntarily given to the police at both Dutsinma and at the State CID…”
In the light of the foregoing, I cannot but agree that the trial Court was right in admitting and relying on the said confessional statements of the appellant as part of the evidence against him.
The fact that the accused did subsequently retract his confession does not mean that the Court cannot act on it and convict him accordingly as the circumstances of the case justify it. I also resolved this issue against the appellant.
In summary, I hold that there is no merit in this appeal. It is accordingly dismissed. I affirm the judgment of
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the lower Court in Charge No. KTH/DM/8c/2011 delivered on 28th January, 2016.
Appeal dismissed.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading Judgment of my learned brother, SHU’AIBU JCA just delivered. I agree with his reasoning and conclusion. The trial Judge rightly relied on the confessional statement of the Appellant, which was corroborated by the evidence of PW3, PW7 and PW8. I agree that the Respondent had discharged the burden on it, of proving beyond reasonable doubt, the guilt of the Appellant. I find no merit in the appeal and I dismiss it. I affirm the Judgment of the trial Court delivered in Charge No: KTH/DM/8C/2011 on the 28th of January, 2016.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the advantage of reading in draft the judgment of my brother M. L. SHUAIBU JCA with which I am in complete agreement. The brief facts of the case are as ably and dexterously reviewed in the leading judgment. It is for the reasons he has so clearly stated therein and the conclusions arrived thereat that I too with due homily and clear conviction dismiss the Appeal and affirm the judgment of the lower Court in charge No:
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KTH/DM/8C/2011 delivered on the 28th January, 2016.
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Appearances:
Agada Elachi, Esq. For Appellant(s)
Abdur-Rahman Umar, Esq (Director Public Prosecutions), with him, Abubakar Idris, State Counsel, Ministry of Justice, Katsina State For Respondent(s)