KALIMBO v. STATE & ANOR (2020)

KALIMBO v. STATE & ANOR

(2020)LCN/14433(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Friday, July 24, 2020

CA/G/261/C/2019

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Muhammed Mustapha Justice of the Court of Appeal

Between

YAKUBU IBRAHIM KALIMBO APPELANT(S)

And

1. THE STATE 2. UMAR A. UMAR RESPONDENT(S)

RATIO

DEFINITION OF A “CONFESSIONAL STATEMENT”

It is trite law that a Confessional statement made by an accused person, properly admitted in evidence is, in law, an undisputed indication of the truth of the role played by such an accused person in the Commission of the offence; See OSENI V. STATE (2012) 5 NWLR PART 1293 PAGE 351.
The retraction of a Confessional statement per se does not render it inadmissible. The fact that an accused person has changed his mind to now deny making a confessional statement to the police, does not in itself render such extra judicial statement inadmissible, merely because the accused person has denied having made it. Where a confession is denied the Court is expected to determine the weight to be attached to a retracted confessional statement, by testing its truthfulness and veracity, and that is done by examining the said statement in the light of other credible available evidence.

WHETHER OR NOT A CONFESSION ALONE IS SUFFICIENT TO SUPPORT A CONVICTION WITHOUT CORROBORATION
It is always important not to lose sight of the fact and indeed the law that a confession alone is sufficient to support a conviction without corroboration, so long as the Court is satisfied of the truth of the confession; See JAMES OBI ACHABUA V. THE STATE (1976) 12 SC 63. What counts most is that the truth of the matters admitted in the statement be established, by some other evidence, no matter how slight. The locus classicus on the subject is the case of V. SYKES (1913) 8 C.A.R. 233, which has been applied in several Nigerian cases. A notable point perhaps in this case is that it would have been unwise to have convicted on the evidence of identification alone, if not assisted by the confessional statements, and would also Probably have been unsatisfactory if the conviction had rested solely on the confession, without the circumstances which make it probable that the confessions were true. The tests laid down, are elaborately stated and therefore needless to overemphasize, see OSETOLA V. STATE (2012) 17 NWLR (PT. 1329) 251 AT PAGE 278 DAWA V. STATE (1980) 8-11 SC 236; See ALSO OKAFOR V. THE STATE (1965) NMLR 20.
More often than not, confessional statements coming are made extra-judicially, i.e. usually before the police during investigation of the case. It is very common also for the accused persons to be stark illiterates who do not understand English, the language of the Court, thus invariably necessitating the recording of their statements in the language they understand and translating it to English language; with the caveat that the Courts be careful, for the purpose of ensuring that confessional statements which are not voluntary or otherwise not of the making of an accused person, or which were otherwise procured by fraud, inducement, threat, promise, intimidation or duress is not foisted on the accused to their detriment See: SAMUEL OJEGELE V. THE STATE (1988) 1 NWLR (PT. 71) 414 AND KIM V. STATE (1992) 2 NSCC (PT. 111) 581 @ 593. PER MUSTAPHA, J.C.A.

WHETHER OR NOT A COUNSEL REPRESENTING AN ACCUSED PERSON OWES A DUTY TO HIS CLIENT TO RAISE AN OBJECTION TO THE ADMISSIBILITY OF AN EXTRA JUDICIAL STATEMENT

Counsel representing an accused person owes a duty to his client to raise an objection to the admissibility of an extra judicial statement at the point of tendering same where he has good reason, and not at the address stage. Failure to do so at that point is conclusive evidence that it was made voluntarily. Counsel who failed to object to the admissibility of a Confessional Statement at the point of tendering cannot be heard to later challenge its voluntariness. See MUSA V. THE STATE (2019) 4 NWLR (PT. 1662) 335 AT 344 – 345 PARAGRAPH H – A; SUNDAY V. FEDERAL REPUBLIC OF NIGERIA (2019) 4 NWLR (PT. 1662) 211 AT 240 PARAGRAPHS A – F; RABE V. FEDERAL REPUBLIC OF NIGERIA (2019) 4 NWLR (PT. 1662) 211 AT 240 PARAGRAPHS A – F; and OSUAGWU V. STATE (2013) 5 NWLR (PT. 1347) 360. PER MUSTAPHA, J.C.A.

WHETHER OR NOT WHERE AN INTERPRETER HAS BEEN USED IN TAKING DOWN A CAUTIONED STATEMENT OF AN ACCUSED PERSON, THAT STATEMENT REMAINS INADMISSIBLE UNLESS AND UNTIL THE PERSON WHO SERVED AS INTERPRETER IN TAKING DOWN THE STATEMENT IS CALLED AS A WITNESS

In principle, the failure on the part of a trial Court to appreciate the inadmissibility of a statement by an accused person when such statement is not Confirmed and established by the person who acted as its interpreter, when it was recorded in a different language can be fatal; see FRN V. USMAN (2012) 8 NWLR 1301 P.141 AT 159-151, where the Supreme Court held:
“The law is that where an interpreter had to be used in taking down of a cautioned statement of an accused Person, that statement remains inadmissible unless and until the person who served as interpreter in taking down the statement is called as a witness as well as the Person who wrote down the statement. Sgt Akinola Israel who was the interpreter did not testify before the lower Court. In the circumstances the confessional statement Exhibit A and A1 is inadmissible in evidence.”
An accused must claim his right to an interpreter at the time of his trial, not after, for the first time on appeal; See: THE QUEEN V. EGUABOR (1962) 1 ALL NLR 28. PER MUSTAPHA, J.C.A.

BURDEN OF PROOF IN CRIMINAL TRIALS

That the burden of proof is on the prosecution, and it never shifts, and failure to discharge the burden renders the benefit of doubt to be resolved in favour of the accused; see ANI V. STATE (2003) 11 NWLR part 830 page 142 and IFEJIRIKA V. STATE (1999) 3 NWLR part 593 page 59. PER MUSTAPHA, J.C.A.

MUHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This is a sister appeal to CA/G/262/C/2019. The appellant was tried and convicted in the same trial with the appellant in the sister appeal, by the same Court, represented by the same counsel. The grounds of appeal are the same in both cases; issues for determination are the same, just as submissions of counsel on both sides of the divide are the same, verbatim.

The only difference is the name of the parties, the respective numbers of the appeal and the fact that Exhibit D and D1 in this case are Exhibits F and F1.

For these reasons, the conclusions arrived at in 262C/2019 are the same with those arrived at in this case in every material respect; be that as it may, l would still restate them for the avoidance of doubt.

This appeal is against the judgment of the High Court of Gombe State, sitting in Gombe, presided by Hon. Justice M. A. Pindiga, dated 18th of December, 2018, convicting the appellant on a two count charge of criminal conspiracy, to commit armed robbery, and armed robbery, contrary to Sections 5 (b) and 1 (2) (b) of the Robbery and Fire Arms (special provision) Act,1990, as amended,

punishable under Sections 1(2)(a) and 1(2) (b) of the Act. The appellant was sentenced to 21 years imprisonment; see pages 90 to 128 of the record of appeal.

Dissatisfied with the judgment of the trial Court, the appellant appealed to this Court by a notice of appeal filed on the 18th of March, 2019 on six grounds, as per pages 129 to 136 of the record of appeal; the record itself having been transmitted, with leave of this Court granted on the 22nd of January, 2020. The judgment of the trial Court is at pages 90 to 128 of the record of appeal.

Facts in brief:
The appellant alongside the 2nd respondent was charged with two counts. (1) Criminal Conspiracy to Commit armed robbery contrary to Section 5(b); punishable under Section 1 (2) (a) of the Robbery and Firearms, (Special Provisions) Act, 1990, as amended and (2) armed robbery, contrary to Section 1(2) (b) of the Robbery and Firearms, Special Provisions Act, 1990, as amended.

The charge dated the 28th of April, 2017 is at pages 4 to 5 of the record of appeal; the appellant pleaded not guilty to both the counts as read and explained to him. The prosecution called nine

witnesses in proof, and tendered Exhibits C, C1, C2, D, D1, D2, E, EI, EII, EIII, EIV, F, F1 and F2; and the defense called four, including the appellant and the 2nd respondent; see pages 81 to 82 and 84 to 87 of the record of appeal.

The grounds of appeal are as follows:
Ground one:
The learned trial judge erred in law and came to a wrong decision when he relied on the confessional statement of the Appellant admitted as Exhibits D, D1 & D2, F, F1 & F2 in convicting Appellant for conspiracy to common armed robbery.
Particulars of Error
i. The only evidence relied upon by the lower Court in convicting the Appellant was his retracted confessional statement in which it was claimed he confessed to the commission of the offence
ii. PW4 and PW7 being police Officers stated that they wrote the confessional statements on behalf of the Appellant in Hausa Language and also translated the statement into English language.
iii. PW4 and PW7 being police Officers did not testify that they are licensed or professional interpreters
iv. The confessional statements relied upon by the lower Court were retracted by the Appellant

The confessional statement relied upon by the lower Court are unreliable and not corroborated by any evidence whatsoever
vi. PW2, under cross examination admitted that he did not recognize the accused person.
vii. The Appellant had no representation by a legal practitioner at the police station when PW4 and PW7 wrote the confessional statement in Hausa language and translated same into English language.
GROUND 2
The learned trial judge erred in law and came to a wrong conclusion in convicting the Appellant when he held that the prosecution established and proved beyond reasonable doubt all the ingredients of Armed Robbery against the Appellant.
Particulars of Error.
i. There is no evidence before the lower Court that the Appellant committed the Offence of Armed Robbery.
ii. The prosecution only testified that the weapon used were cutlasses and a knife and did not testify or state if same were recovered or efforts were made to recover the knifes and cutlasses.
iii. The evidence of PW1, PW3, PW4, PW5, PW6, PW7, PW8 and PW9 is hearsay as they were not present when the deceased was stabbed or robbed.
iv. The trial judge

only came to the decision that the prosecution had proved beyond reasonable doubt the offence of Armed Robbery by relying on the unreliable confessional statement of the Appellant.
v. There was no other evidence corroborating the unreliable confessional statement of the Appellant
vi. PW2 the security man testified under cross examination that he did not recognize the accused person.
GROUND 3
The lower Court misdirected itself in law and came to wrong decision when it held as follows:
“It is evident and obvious from the evidence before the Court the prosecution relied also on confessional statement in proving the guilt of the accused persons. This Court is of the firm believe (sic) that the confessional statements were direct, positive and unequivocally pointing to the guilt of the accused persons. This Court refers to Exhibits D & D1, F & F1 respectably (sic).”
Particulars of Misdirection
i. The confessional statements relied upon by the lower Court are unreliable and not corroborated by any evidence whatsoever.
ii. The manifest Contradictions in the testimonies of PW1, PW3, PW4, PW5, PW6, PW7, PW 8 and PW9

weigh heavily against the prosecution and render the confessional statements reliable.
iii. There is no independent evidence corroborating the confessional statements relied upon by the lower Court linking the Appellant to the offence of Armed Robbery.
iv. The prosecution did not provide any independent evidence to corroborate the retracted confessional statements of the Appellant.
v. The evidence relied upon by the lower Court corroborative evidence is hearsay evidence which did not corroborate the retracted confessional statement or link the Appellant to the offence of Armed Robbery.
vi. The prosecution still has the burden and duty to proof its case beyond reasonable doubt notwithstanding the confessional statement of the Appellant.
vii. For a conviction relying on the extra-judicial confessional statement of an accused person to stand, the Court must seek some independent evidence does not terminate the duty on the prosecution in securing a conviction, to prove its case.
GROUND 4
The lower Court wrongly evaluated the evidence at the lower Court and misdirected itself when he held as follows:
“The accused

persons carried out the said act were armed with cutlasses, digger and knives this Court refers to Confessional statements of the accused persons. Exhibits D & D1, F & F1. In this exhibits, they admitted that they were armed with cutlasses, knives and digger at the time they carried out the robbery and it was consistent with the evidence of PWII who saw the accused persons at the time they entered the Filling Station. This Court aligned with the submission of the prosecution in that regards.”
Particulars of Misdirection
i. PWII testified under cross examination that he did not recognize the accused person.
ii. The evaluation of the evidence relied upon by the lower Court was as stated in the prosecution’s Final Written Address.
iii. The evidence of PWII at the lower Court is at variance with the conclusion reached by the lower Court.
iv. The wrong evaluation of the evidence of PWII affected the conclusion reached by the lower Court.
v. The findings of the lower Court is not supported by the evidence of PW II on record.
GROUND 5
The lower Court erred in law and came to a wrong decision when he held

as follows:
“This Court therefore holds that the prosecution has proved the two count charges of criminal Conspiracy to commit armed robbery and armed robbery under Sections 5 (b) and Armed Robbery under Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990. This is prove beyond reasonable doubt as laid down in Section 139(1) of the Evidence Act, 2011.”
Particulars of Error
i. The burden is on the prosecution to establish by credible evidence and beyond reasonable doubt the guilt of the Appellant.
ii. In establishing the guilt of the Appellant, the prosecution must prove all the ingredients of the offence for which the Appellant is charged.
iii. The case of the prosecution is filled with contradiction and inconsistencies raising doubts which should be resolved in favour of the Appellant.
iv. The prosecution failed to establish the fact that the Appellant committed the offences of conspiracy to commit armed robbery and Armed Robbery.
GROUND 6
The judgment of the lower Court is unreasonable and cannot be supported having regards to the evidence.

From these grounds the following issues

were formulated for determination in the appellant’s brief filed on the 20th of January, 2020, settled by Adedayo Adesina Esq., of counsel:
ISSUE ONE:
Whether the lower Court was right to have relied solely on the statements of the appellant admitted as Exhibits D and D1 to Convict the appellant for the offences of criminal Conspiracy to commit armed robbery and armed robbery, without independent corroborative evidence to ground the conviction. (grounds 1 and 3).
ISSUE TWO:
Whether having regard to the totality of evidence placed before the trial Court and the position of the law, the 1st respondent proved all the offences for which the appellant was convicted, beyond reasonable doubt; (grounds 2, 4, 5 and 6).

The 1st respondent in its brief settled by Zubairu Muhammad Umar Esq., Att. Gen. Gombe State, filed on the 25th of May, 2020, and deemed properly filed on the 28th of May, 2020 adopted the two issues formulated on behalf of the appellant. The appeal will be determined on the two issues formulated by the appellant and adopted by the 1st respondent.

ISSUE ONE:
It is submitted for the appellant on this issue that the

lower Court relied only on the retracted extra judicial statements of the accused/appellant Exhibits D and D1, and not on any other independent evidence to corroborate the retracted extra judicial statements; this Court was referred to EDHIGERE V. STATE (1996) 8 NWLR part 464 page 1 at 10, OGUDO V. STATE (2011) 18 NWLR part 1278 page 1 at 26, OKOH V. STATE (2014) 8 NWIR part 1410 page 502 at S26, ONUOHA V. STATE (1987) 4 NWLR part 65 page 331, OJEGELE V. STATE (1988) 1 NWLR part 71 page 414, AKPA V. STATE (2007) 2 NWLR part 1019 page 500 and BASSEY. V STATE (1993) 7 NWLR part 306 page 469.

That the appellant denied committing the offense for which he was charged, by the retraction of Exhibits D and D1; as such the trial Court ought to have determined whether the statements are reliable and true before Convicting the appellant.

That also the procedure by which Exhibits D and D1 were written, recorded, translated and interpreted casts doubt as to the veracity and reliability of the exhibits; because PW5 who translated the statement to English language did not use an independent interpreter to read the English version to the appellant.

That what PW5 ought to have done was to record the statement in English, then translate it into Hausa language and not the other way round, as such the trial Court was wrong to have attached weight to the statement; learned counsel referred the Court to THE QUEEN V. NNANA OKORO (1960) NSCC 93 at 94 and STATE V. EZE (1972 ECSLR part 2 page 704.

That, the fact that the police were involved in the arrest and prosecution of the appellant, as agents of the state and also started and concluded the recording, translation and interpretation of the statement of the appellant, without an independent interpreter deprived the appellant of a balanced and undiluted statement; the Court was referred to KALU V. STATE (2011) 4 NWLR part 128 page 429 at 448, OGUNSANYA V. STATE (2011) 12 NWLR part 1262 page 401 at 417 and EZECHUKWU V. ONWUKA (2006) 2 NWLR part 963 page 151 at 204.

It is further submitted for the appellant that with the manifest doubt created all over Exhibits D and D1, the trial Court was wrong to have admitted them in evidence, relied and attached weight to the said exhibits and convicted the appellant; NWEZE V. STATE (2017) part 1354 page 597 and FRN V. ABUBAKAR

(2019) LPELR-46533-SC.

That the evidence of PWS 1-8 are hearsay evidence which did not corroborate Exhibits D and D1, as the said witnesses were not there when the offence was allegedly committed; the Court was referred to ADELEYE V. STATE (2015) 3 NWLR part 1446 page 229 and STATE V. GWANGWAN (2015) 13 NWLR part 1477 page 600.

It is submitted for the 1st respondent in response that the prosecution apart from Exhibits D and D1 and F and F1 which established the guilt of the appellant also tendered Exhibits E, E2, E3 and E4 in corroboration, and that these pieces of evidence were not contradicted or controverted by the appellant.

That the confession of the appellant was admitted without objection, as such a voluntary confession which complies with the rules governing taking of confessional statements and its admissibility, especially without objection, is good evidence, and no amount of subsequent retraction will vitiate it; the Court was referred to RE OSAKWE (1994) 2 NWLR part 326 page 273 at 276, AMANCHUKWU V. FRN (2009) VOL 171 page 154 at 157 and SOLOLA V. STATE (2005) ALL FWLR part 269 page 1751 at 1782.

It is further submitted for the 1st

respondent that the evidence of PW2 that he was at the filling station mosque when the 2nd respondent and others fell him, tore his blanket with which he was tied up and threatened was not impeached during cross examination- same with that of PWS 3, 4, 5 and 6.

RESOLUTION
It is trite law that a Confessional statement made by an accused person, properly admitted in evidence is, in law, an undisputed indication of the truth of the role played by such an accused person in the Commission of the offence; See OSENI V. STATE (2012) 5 NWLR PART 1293 PAGE 351.
The retraction of a Confessional statement per se does not render it inadmissible. The fact that an accused person has changed his mind to now deny making a confessional statement to the police, does not in itself render such extra judicial statement inadmissible, merely because the accused person has denied having made it. Where a confession is denied the Court is expected to determine the weight to be attached to a retracted confessional statement, by testing its truthfulness and veracity, and that is done by examining the said statement in the light of other credible available evidence.

As a matter of practice, the Courts normally require some evidence in addition to the confessional statement which make the confessional statement probable, the Court does that by considering whether: a) There is anything outside that Confessional statement to show that it is true; b) It is Corroborated; c) whether the facts stated in it are true as far as it can be tested; d) whether the accused person had the opportunity of committing the offence; e) whether the confession is possible in the circumstances; f) whether the Confession is consistent with other facts ascertained and proved at the trial; See OSETOLA V. STATE (2012) 17 NWLR (PT 1329) 251 AT PAGE 278 AND DAWA V. STATE (1980) 8-11 SC 236.
It is always important not to lose sight of the fact and indeed the law that a confession alone is sufficient to support a conviction without corroboration, so long as the Court is satisfied of the truth of the confession; See JAMES OBI ACHABUA V. THE STATE (1976) 12 SC 63. What counts most is that the truth of the matters admitted in the statement be established, by some other evidence, no matter how slight. The locus classicus on the subject is the case of

V. SYKES (1913) 8 C.A.R. 233, which has been applied in several Nigerian cases. A notable point perhaps in this case is that it would have been unwise to have convicted on the evidence of identification alone, if not assisted by the confessional statements, and would also Probably have been unsatisfactory if the conviction had rested solely on the confession, without the circumstances which make it probable that the confessions were true. The tests laid down, are elaborately stated and therefore needless to overemphasize, see OSETOLA V. STATE (2012) 17 NWLR (PT. 1329) 251 AT PAGE 278 DAWA V. STATE (1980) 8-11 SC 236; See ALSO OKAFOR V. THE STATE (1965) NMLR 20.
More often than not, confessional statements coming are made extra-judicially, i.e. usually before the police during investigation of the case. It is very common also for the accused persons to be stark illiterates who do not understand English, the language of the Court, thus invariably necessitating the recording of their statements in the language they understand and translating it to English language; with the caveat that the Courts be careful, for the purpose of ensuring that confessional

statements which are not voluntary or otherwise not of the making of an accused person, or which were otherwise procured by fraud, inducement, threat, promise, intimidation or duress is not foisted on the accused to their detriment See: SAMUEL OJEGELE V. THE STATE (1988) 1 NWLR (PT. 71) 414 AND KIM V. STATE (1992) 2 NSCC (PT. 111) 581 @ 593.

Learned counsel to the appellant stretched it too far by contending, in this case that the trial Court failed to consider ‘…any independent evidence to corroborate the retracted extra judicial statements’; because apart from Exhibits D, D1, F and F1 there are numerous pieces of evidence which corroborated the confession, such as Exhibit E1, coil shaft, E2 a digger, E3 a safe cover and E4 block engine which were recovered from the appellant, by his own admission, see page 62 lines 1-3, and tendered and admitted without objection; and also page 63 line 14-16 of the record of appeal.

Equally important is the fact that PWVI stated in Court, without objection that first accused/appellant, apart from his confession, also led the police to the house of the 2nd accused person in Filiya, where by his own

admission they slept, preparatory to the commission of the robbery; see page 66 lines 6-8 of the record of appeal.

PW2 Mohammadu Shariya, the guard at the filling station that was robbed, also stated in corroboration that the appellant along with others came around 3.00am ‘…with cutlass digger and sharp.” “…there was moonlight and lantern… I saw them they were four in number… they carried me and threw me on the ground, then they tied my hands with my blanket which they tore… one of them sat on me and said he will kill me if I talk”.

That also while in detention the 1st accused/appellant told him he was ‘…the one who tied my hands and legs’; see page 54 line 13-14 of the record of appeal, and that was not disputed or controverted during cross examination.

There is evidence in corroboration on record, at page 55, where the PW3, Adamu Muazu, also corroborated the evidence of PW2 when he stated that:
“…1st accused told the PW2 in the cell that he was the one who tied his hands and legs sat on him from the beginning of the operation to the end…”; see pages 55lines 15-20 of the record of appeal.

Furthermore, the PW4 also stated in further corroboration at pages 59 lines 1-6 of the record of appeal, that “…the 1st accused person… told us that they are the ones who did it. He told us where the hid the money in the house of the father of the 2nd accused…”.

These pieces of evidence were not controverted. They clearly corroborated Exhibits D and D1, contrary to the contention of learned counsel to the appellant. So it is absurd in the circumstances to argue that the conviction was based solely on the retracted confessions of the appellant, without recourse to any independent corroborative evidence.

It is trite law that confession remains the best form of evidence against an accused person. Where an extra judicial statement made by an accused person is confessional it is an admission that he actually committed the alleged crime. Conviction may therefore be sustained solely on such extra judicial statement, where it is properly proved and admitted in evidence as in this case.

Counsel representing an accused person owes a duty to his client to raise an objection to the admissibility of an extra judicial statement at

the point of tendering same where he has good reason, and not at the address stage. Failure to do so at that point is conclusive evidence that it was made voluntarily. Counsel who failed to object to the admissibility of a Confessional Statement at the point of tendering cannot be heard to later challenge its voluntariness. See MUSA V. THE STATE (2019) 4 NWLR (PT. 1662) 335 AT 344 – 345 PARAGRAPH H – A; SUNDAY V. FEDERAL REPUBLIC OF NIGERIA (2019) 4 NWLR (PT. 1662) 211 AT 240 PARAGRAPHS A – F; RABE V. FEDERAL REPUBLIC OF NIGERIA (2019) 4 NWLR (PT. 1662) 211 AT 240 PARAGRAPHS A – F; and OSUAGWU V. STATE (2013) 5 NWLR (PT. 1347) 360.
The extra judicial statements of the Appellant, having been admitted In evidence without any objection to their admissibility constitute conclusive evidence that they were made voluntarily and I so hold.

On the propriety or otherwise of the interpretation of the confession from Hausa language to English language by the same police officer who recorded the confession, this Court cannot help but hold that as a general rule, it has to be said that, where an interpreter was used in recording a confessional statement and a

Court decides to rely on the truth of such a confessional statement in convicting an accused, the Court can only do so when the interpreter has been called to testify in order to confirm the veracity of his interpretation. Where that is not done, the confessional statement is inadmissible; see NWAEZE V. THE STATE (1996) 2 NWLR PART 428 P.1 AT P.20.
In principle, the failure on the part of a trial Court to appreciate the inadmissibility of a statement by an accused person when such statement is not Confirmed and established by the person who acted as its interpreter, when it was recorded in a different language can be fatal; see FRN V. USMAN (2012) 8 NWLR 1301 P.141 AT 159-151, where the Supreme Court held:
“The law is that where an interpreter had to be used in taking down of a cautioned statement of an accused Person, that statement remains inadmissible unless and until the person who served as interpreter in taking down the statement is called as a witness as well as the Person who wrote down the statement. Sgt Akinola Israel who was the interpreter did not testify before the lower Court. In the circumstances the confessional statement Exhibit A

and A1 is inadmissible in evidence.”
An accused must claim his right to an interpreter at the time of his trial, not after, for the first time on appeal; See: THE QUEEN V. EGUABOR (1962) 1 ALL NLR 28.
It is very important to appreciate the fact that in this case, by learned counsel to the appellant’s own admission, the recorder of the statement, as borne by the record of appeal, was inspector Fred Agbe, PW VI; see page 65 lines 8- 19.
He recorded the statement in Hausa, after cautioning the appellant; it was read over to him by the same PW VI, the statement was then translated into English by the same witness, it was signed by the appellant and the witness and read over to the appellant again, after which he signed.
Clearly in this case, the police officer was the one who recorded and interpreted the confession into both Hausa and later English languages. That being so, the necessity for calling the interpreter is obviated, because one person performed both functions; It would have been different if another person did the interpretation after PW VI had done the recording.
This is more so as the witness not only tendered and

admitted both versions, i.e. the Hausa recording and the English translation, he understood both languages, well enough to be able to interpret one into the other.
The law only requires that the confessional statement of the accused, if taken in a language different from English, be tendered alongside the one in English language, in order that the requirement of the onus of proof beyond reasonable doubt can be seen to have been discharged; see OLANIPEKUN V. STATE (2016) 13 NWLR (PT. 1528) 100 AT 117.
For the avoidance of doubt there is nothing wrong with the police recording the statement of an accused person and interpreting it, what is important is the assurance that the requirements of fair hearing are adhered to, see Section 36 (6) of Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The cases of ZAKWAKWA V. QUEEN (1960) SCNLR 36 AND NWALI V. STATE (1991) 3 NWLR (PT. 182) 663 stress the importance of getting the original statement and the translation and those who did the translations produced in Court for purpose of comparison and testing the veracity of the versions, but that is not what makes them relevant to the case at

hand; in QUEEN V. ZAKWAKWA OF YORO (SUPRA) the statement was recorded in Mumuye and later translated by different people into Hausa and English. The conviction was set aside because the persons who translated the statement from Mumuye to Hausa and from Hausa to English were not called to be cross-examined. Be that as it may, the fact that the recorders were one Lance Corporal Umoru and Lance Corporal Sabana Jalingo shows that there is nothing wrong with police officers recording or translating confessions contrary to the contention of learned counsel to the appellant.

It is for these reasons that issue one is resolved in favour of the 1st respondent against the appellant.

ISSUE TWO:
It is submitted for the appellant on this issue that notwithstanding the admission of Exhibits D and D1, the 1st respondent has the burden of establishing and proving the ingredients of the offences charged beyond reasonable doubt; the Court was referred to NJOKU V. THE STATE (1992) 8 NWLR part 262 page 714.

That since count one is conspiracy to commit armed robbery, the 1st respondent has to prove an agreement between two or more persons to do or cause to be

done some illegal act or some act which is not illegal by illegal means, or where the agreement Is other than an agreement to commit an offence, that some act beside the agreement was done by one or more parties in furtherance of the agreement and each of the accused individually participated in the Conspiracy; learned counsel referred the Court to ADAMU V. STATE (1986) 3 NWLR part 32 page 865 and YAKUBU V. STATE (2012) 12 NWLR part 1313 page 131.

That the 1st respondent failed to discharge the burden placed on it to establish the offence charged; learned counsel again repeated his arguments under issue one; contending that the failure of the trial Court to analyze the Contents of the retracted statements, i.e. Exhibits D and D1 is fatal to the conviction of the appellant; the Court was referred to BAKO V. STATE supra.

Learned counsel further submitted that the evidence

on which the appellant was convicted, particularly with reference to Exhibit D and D1 is unreliable, equivocal, indirect and doubtful, and that the evidence of other witnesses who were not eye witnesses is merely hearsay and therefore inadmissible, the Court was referred to ALOR V. STATE (1997) 4 NWLR part 505 page 511 and ABIEKE V. THE STATE (1975) 911 SC 97.

That the prosecution did not establish the guilt of the appellant by direct or circumstantial evidence, all the Court had to rely on was the retracted confessional statement, which was not independently corroborated; the Court was referred to NWACHUKWU V. STATE (2002) 12 NWLR part 782 page 543 and EDAMINE V. STATE (1996) 3 NWLR part 438 page 530.

That considering the totality of evidence before the trial Court the Conviction and sentence of the appellant was made in error, since the statement was retracted, and the trial Court failed to find independent evidence outside the retracted confessional statement in proof of the guilt of the appellant.

It is submitted for the 1st respondent in response that the prosecution proved the case against the appellant beyond reasonable doubt as required

by law; OTEKI V. STATE (2005) 4 ACLR 401; and that the trial Court was right to have found the appellant guilty of conspiracy and armed robbery as charged from the evidence adduced; the Court was referred to EMEKA V. STATE (2005) 4 LRCNCC 187.

That the confessional statement was direct, positive and unequivocal, and therefore admissible, as it relates to the acts of the appellant; the Court was referred to AYO V. THE STATE (2008) 6 ACLR 220 and ADEKOYA V. THE STATE (2013) ALL FWLR part 662 page 16312.

That the appellant’s denial does not affect the admissibility of the confession; the Court was referred to AYO V. THE STATE supra and FATILEWA V. THE STATE (2007) 5 ACLR 607, and also that the judgment of the trial Court should not be set aside, as it has not been shown to be perverse or occasioned any miscarriage of justice; the Court was referred to MICHAEL V. STATE (2009) 2 WRN 23.

RESOLUTION:
Section 135 (1) and (2) of the Evidence Act, 2011. provides:
“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. (2) The burden of

proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it; whether the commission of such act is or is not directly in issue the action.”
The clear requirement in these provisions is that whoever alleges that a person is guilty of the commission of a crime bears the legal duty and evidential burden of proving the allegation beyond reasonable doubt.
These provisions derive their authority from Section 36(5) of the Constitution, whose provisions guarantee the right of every person accused of the commission of a crime, the presumption of innocence until proven guilty. These provisions have also over the years been applied by all Courts, without exception to mean that the prosecution, in all criminal cases, bears the burden of proving any alleged offence, beyond reasonable doubt; See ONYEACHIMBA V. STATE (1998) 8 NWLR (563) 587; KIM V. STATE (1992) 4 NWLR (233) 17; OBIAKOR V. STATE (2002) 10 NWLR (776) 612; DIBIE V. STATE (2007) 9 NWLR (1038) 30 AND SHURUMO V. STATE (2010) 19 NWLR (1226) 73.
Although the evidence Act requires that the allegation of the commission of

a crime be proved beyond reasonable doubt, there is no clear definition by the Act of the term beyond reasonable doubt; be that as it may, the Courts have over the years dug deep to give meaning to the term; see AGBO V. THE STATE (2000) ALL FWLR (309) 1380 @ 1417 and SHANDE V. STATE (2005) 6 SC (PT. II) 1 ALSO REPORTED IN (2005) ALL FWLR (279) @ 1357, where the supreme Court barred it all in the following words per Pats-Acholonu, JSC:
“It is essential to stress times without number that the expression proof beyond reasonable doubt – a phrase coined centuries ago and even ably applied by the Romans in their well developed jurisprudence and now verily applicable in our legal system, is proof that excludes every reasonable or possible hypothesis except that which is wholly consistent with the guilt of an accused person and inconsistent with any other rational conclusions.”
In plain parlance, the term simply means, the evidence adduced by the prosecution points, unequivocally to the guilt of an accused person, sufficiently, to establish all the essential ingredients of the offence charged; See OLIEH V. STATE (2005) ALL FWLR (281) 1746 AND

UDOSEN V. STATE (2007) ALL FWLR (356) 669. In this scheme, it is always the prosecution that bears the burden of proof beyond reasonable doubt, throughout the trial, the accused person does not have to lift a finger, because he does not have to prove his innocence; see ADEKUNLE V. STATE (2006) ALL FWLR (322) 1452 AND SHEHU V. STATE (2010) 8 NWLR (1195) 112.
Where the burden is not discharged in the least, a reasonable doubt would have been created as a result, from the failure to establish an essential ingredient of the offence, as a consequence of which, the doubt so created would be resolved in favour of the accused person; see IBE V. STATE (1997) 1 NWLR (494) 632; ONYIRIMBA V. STATE (2002) 11 NWLR (777) 83 AND ALMU V. STATE (2009) 10 NWLR (1148) 31.

A confession is an admission made by an accused person suggesting that he committed the crime which is the object of the charge preferred against him; See Section 28 of Evidence Act 2011, AKIBU HASSAN V. THE STATE (2001) 15 NWLR (Pt. 735) 184 and IKEMSON V. STATE (1989) 3 NWLR (Pt. 110) 455.
There is no stronger evidence than a mans own admission or confession; it is the best evidence on which the Court

can rely upon to Convict; thus a man may be convicted on his confessional statement alone, if it is ascertained to be voluntary, free and positive, once the Court is satisfied of its truth. A confession in this mould would constitute proof of guilt of the maker, and suffices to all intents and purposes as evidence upon which to ground a Conviction; See DIBIE V. THE STATE (2007) 9 NWLR (PT. 1038) 30; OZANA UBIERHO V. THE STATE (2005) 4 NWLR (PT. 919) 644 AT 655; IKPO V. THE STATE (2016) LPELR 40114 (SC); ADEKOYA V. THE STATE (2012) 9 NWLR (PT. 1306) 539 and ASIMI V. THE STATE (2016) LPELR – 40436 (SC).
A confession is to all intents and purposes a willful surrender to the law; this is more so, where it is adjudged positive and direct, and freely made by the accused person; See OMOJU V. FRN (2008) ALL FWLR (Pt. 415); SALAHUDEEN V. THE STATE (2013) LPELR CA/K/1/C/2012; AKPA V. STATE (2009) 39 WRN 27; (2008) 14 NWLR (Pt. 1105) 72 and BLESSING V. FRN (2013) 12 WRN 36.
Because crimes are usually committed out of sight, it is often difficult for the prosecution to get eye witnesses; this is what makes a confession, even without corroboration sufficient for

conviction in most cases, once the trial Court is satisfied of its veracity; and it is for this reason that even where an accused person retracts or resiles, the statement confessing the crime, can be taken account of, especially along with other evidence, by the trial Court which will decide whether or not the accused did make the statement. The Prosecution can prove the case against the accused either by circumstantial evidence or by the confessional statement of the accused. It cannot be on circumstantial evidence alone.

Exhibits D and D1, the confessional statements of the appellant in this case are very clear, direct and unambiguous leaving no room for doubt as to how, when, with whom the appellant perpetrated the offences for which he was charged and convicted.

I have, while resolving issue one made it clear that apart from the confession, there are other independent evidence available to corroborate the confession which the appellant appears to have retracted. At the risk of repetition it is important to once again point out that apart from Exhibits D and D1, there are numerous pieces of evidence which corroborated the confession, such as

Exhibit E1, coil shaft, E2 a digger, E3 a safe cover and E4 block engine, which were recovered from the appellant and his accomplices, tendered and admitted without objection; see page 63 line 14-16 of the record of appeal.

Equally important is the fact that PW VI stated in Court, without objection that the first accused/appellant, apart from his confession, also led the police to the house of the 2nd accused person in Filiya, where by his own admission they slept, preparatory to the commission of the robbery; see page 66 lines 6-8 of the record of appeal.

PW2 Mohammadu Shariya, the guard at the filling station that was robbed, also stated in corroboration that the appellant along with others came around 3.00am ‘…with cutlass digger and sharp.” “…there was moonlight and lantern, I saw them they were four in number… they carried me and threw me on the ground, then they tied my hands with my blanket which they tore… one of them sat on me and said he will kill me if I talk”.

That also while in detention the 1st accused told him he was ‘…the one who tied my hands and legs’, see page 54 line 13-14 of the

record of appeal, and that was not disputed or controverted during cross examination.

There is evidence in corroboration on record, at page 55, where the PW3, Adamu Muazu, also corroborated the evidence of PW2 when he stated that:
“…1st accused told the PW2 in the cell that he was the one who tied his hands and legs sat on him from the beginning of the operation to the end…”; see pages 55 lines 15-20 of the record of appeal.

Furthermore the PW4 also stated in further corroboration at pages 59 lines 1-6 of the record of appeal that “…the 1st accused person told us that they are the ones who did it. He told us where the hid the money in the house of the father of the 2nd accused…”

Having resolved both the issues that call for determination in this appeal, I am led to the conclusion that the appeal fails for lack of merit, and it is accordingly dismissed Judgment of the Gombe state High Court, coram Hon. Justice M.A Pindiga, delivered, in GM/44C/2017 on the 18th day of December 2018 is hereby affirmed.

JUMMAI HANNATU SANKEY, J.C.A.: I had the opportunity to read in advance the lead Judgment of my learned brother Mustapha, JCA dismissing the Appeal.
Exhibit D and D1 is a confessional statement freely made by the Appellant which by law, is sufficient to prove the charge against him, even where it is subsequently retracted in Court – Oseni V. State (2017) LPELR-42770(CA) 36-37, D-A. In addition, there is independent evidence outside the confession which make it likely that the confession is true. This was found In the evidence of PW VI, PW2, PW3 and PW4, all of whom testified as to the robbery operation and the Appellant’s actions in conjunction with others, in executing the robbery. Thereafter, the Appellant himself filled in the gaps of what transpired during the robbery on the fateful day in his confessional statement.

The law is trite that a Court can convict an accused person on his retracted confessional statement. However, it is safer to find some evidence outside the confession which makes it likely that the confession is true. This quality of evidence can be found in the form of direct evidence comprising of the eyewitness testimony of PW2. Therefore, based on the confessional statement, albeit retracted, the eyewitness evidence of PW2 and the circumstantial evidence adduced in the trial, there was sufficient evidence upon which the trial Court based the conviction of the Appellant. The trial Court therefore had the legal basis to rely on the confession in Exhibit D and D1 to find the Appellant guilty of the charge as it did in its Judgment.
The Appellant, by his own admission in Exhibit D and D1, expressly and explicitly stated the role he played in the robbery. By all standards, this confession was direct, positive and unequivocal and so the trial Court was entitled to act on it, having found ample corroboration of the facts stated therein in the evidence of PW2 and other witnesses. However, even without corroboration, the law is that a

confessional statement, once not impeached by failure to prove any vitiating factor, is relevant and so, even standing alone, can secure a conviction no matter how weighty the charge – Theophilus V. State (1996) 1 SCNJ 79.
In the case of Solola V. State (2005) ALL FWLR (Pt. 269) 1751, 1782, the Supreme Court endorsed the expansion of the frontiers of the weightiness of a confessional statement in the words of Tobi, JSC thus:
“A confessional statement is the best evidence in our criminal procedure. It is a statement of admission of guilt by the accused and the Court must admit it in evidence, unless it is contested at the trial… Once a confessional statement is admitted, the prosecution need not prove the case against the accused person beyond reasonable doubt, as the confessional statement ends the need to prove the guilt of the accused.” (Emphasis supplied)

It is therefore for this reason and for the more detailed reasons contained in the lead Judgment that I too dismiss the Appeal for lacking in merit. I abide by the consequential Orders made therein.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and

opportunity to read the draft of the lead Judgment by my learned brother, MOHAMMED MUSTAPHA, JCA and I agree completely with the reasoning and conclusion reached therein.

As the point was clearly made therein, mere denial of making or signing a confessional statement by an accused person is not sufficient ground on which to reject it particularly where it was properly tendered. See the case of AKWUOBI V. THE STATE 2016 LPELR- SC379/2011 AND OKWESI V. STATE 1995 NWLR 119.
It is settled and firm as stated that a free and voluntary confession of guilt by an accused person, if direct and positive, duly made and satisfactorily proved before the trial Court, alone, is sufficient to warrant a conviction.

As was clearly found in this Appeal, there were Exhibits E1, Coil shaft, E2, a digger, E3, a safe cover and E4, block engine, recovered from the Appellant, tendered and admitted without objection which corroborated the confessional statements, Exhibits D, D1, F and F1.

Criminal conspiracy was also established as found therein when as admitted by the Appellant who led the police to the house of the 2nd Respondent in Filiya, that they slept there,

preparatory to the commission of the robbery. The finding fits into the description of the offence, that it is usually hatched with utmost secrecy and the law recognizes the fact that in such a situation it is not always easy to lead direct and distinct evidence to prove it. Therefore, inferentially deduced.

For the fuller reasons in the lead Judgment, I also dismiss the Appeal and affirm the Judgment of Hon. Justice Pindiga delivered in GM/44C/2017 of December 18th, 2018.

Appearances:

Adedayo Adesjna, with him, Adetola Adeleke, Victor Akpejl, Moromoke Adegbosin Esq. For Appellant(s)

Zubair Muhammad Umar, with him, Abdussalam Muhammad, Mubarakatu Saleh Hassan, Amina Ahmed Lame, Esq. For Respondent(s)