MUHAMMED v. STATE
(2022)LCN/17152(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, October 07, 2022
CA/K/104A/C/2005
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
ABDULLAHI MUHAMMED APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT CAN CONVICT AN ACCUSED PERSON ON THE BASIS OF HIS CONFESSIONAL STATEMENT
The law is trite that a Court can still convict an accused person even on the basis of his confessional statement, alone, though the statement is denied or retracted at the trial, once the Court adjudges same to have been given, voluntarily. Also, where there are other pieces of evidence at the trial to corroborate the confessional statement, the Court can convict on the same. The authorities on this are replete. See the case of Sani Vs State (2020) LPELR – 53905 (SC), where it was held:
“It is certainly not the law that a Court cannot convict an accused solely on his confessional statement if found to be a clear, positive and direct admission of the commission of the offence with which the accused is charged. This Court has endlessly held that where, as in the case at hand, an accused resiles from his extra-judicial statement, he may still be convicted on the basis of the very voluntary statement if same is corroborated and shown to have indeed been made freely by the accused. The Court has, over the years, imbibed the tests laid in R v. Sykes (1913) 8 CAR. 233 at 238 and admonished trial Courts to obey the rules outlined therein before convicting and accused. See Afolabi v. State (2016) 4 SC 86 at 90, (2016) 11 NWLR (Pt. 1524) 497, Sahalatu Shazali v. State (1988) LPELR – 3040 (SC) (1988) 5 NWLR (Pt. 93) 164 and Rasheed Lasisi v. The State (2013) LPELR – 20183 (SC); (2013) 9 NWLR (Pt. 1358) 74.” Per MUHAMMAD, JSC. PER MBABA, J.C.A.
WHETHER OR NOT A CONFESSIONAL STATEMENT IS SUFFICIENT TO GROUND OF CONVICTION
In the recent decision of this Court in the case of Gambo Sule Vs Kano State (2022) LPELR – 57542 CA, we held as follows:
By law, a confessional statement is sufficient to lie a conviction, even if retracted by Appellant, once the Court find substance in it, and same is corroborated by other pieces of evidence. The evidence of the eye witness account (PW1 and PW6) were strong to corroborate the confession of Appellant to robbery against the Appellant and were even alone, capable of establishing the offence, in my opinion. See the case of Hussein Vs The State (2022) LPELR-57021 (CA), where we held: “Only recently, we had course to restate the law in the case Kabiru Bala v The State (2022) LPELR-56737, on confessional statement as the best evidence to work with and to convict on, once the statement is adjudged credible and made voluntarily by the accused person. We held, thus: “By law, a confessional statement is enough evidence, and, in fact the best evidence, to establish commission of offence, coming from the accused person himself where the confession is adjudged voluntarily made. See the case of Uhara Vs The State (2021) LPELR- 55512 (CA): “We have held several times that a confessional statement alone is a conclusive and sufficient evidence to establish conviction, and, in fact, the best evidence of the commission of the offence, coming directly from the accused person himself, and closing every door of defence against him, except where the issue/defence of provocation can be invoked. See FRN Vs Iweka (2011) LPELR-9350 SC, where it was held that confessional statement is the best evidence of proof of crime and can be accepted as satisfactory evidence, upon which alone the accused can be convicted. See also Ogoala Vs The State (1991) 2 NWLR (Pt.175) 509 at 534.” PER MBABA, J.C.A.
THE POSITION OF LAW WHERE AN ACCUSED PERSON INCRIMINATES A CO-ACCUSED PERSON
Of course, the evidence of the co-accused, naming the Appellant as one of them must be taken with caution, as the law warns against relying on such evidence. See the case of Hassan Vs The State (2016) LPELR – 42554 (SC):
“It is elementary that in a criminal trial, where an accused person incriminates a co-accused in his statement to the police, the statement is evidence only against the maker and not against the co-accused. But if the prosecution, police decides to use the statement against a co-accused, then the prosecution is bound to make the incriminating statement available to the co-accused. See R v. Afose (1934) 2 WACA p. 115.” Per RHODES-VIVOUR, JSC
See also the case of Awo Vs The State (2020) LPELR – 50619 CA, Ajomayan Vs The State (2020) LPELR – 49598 CA and Obinna Vs The State (2021) LPELR – 55847 CA, which states that:
A confessional statement of an accused person, implicating or seeking to implicate a co-accused should always be taken with suspicion, as such confessional statement of a co-accused is no evidence against an accused (Appellant) who has not adopted the statement. See OZAKI & ANOR VS STATE (1990) LPELR-2888 SC, YUSUF & ANOR VS STATE (2019) LPELR 46945 (SC). And such evidence remains against the person who made the confessional statement. See MBANG VS THE STATE (2009) 18 NWLR (Pt. 1172) 157, ALARAPE VS STATE (2001) 2 SC 114; 2001 5 NWLR (Pt. 705).” PER MBABA, J.C.A.
WHETHER OR NOT SUSPICION CAN REPLACE THE EVIDENCE NEEDED TO GROUND CONVICTION
And his conviction appeared to be founded on speculation and suspicion. By law, suspicion, no matter how strong, cannot replace the evidence needed to found conviction, and any lingering doubt about the involvement of an accused in a crime, has to be resolved in his favour. See the case of Igbikis Vs The State (2017) LPELR – 41667 (SC) and Emesonye Vs The State (2016) LPELR – 40550 CA, where it was held:
“…And suspicion or speculation, no matter how strong, cannot lie a conviction, and is not even a basis for trial of the suspect! The authorities abound that one cannot even be charged to Court on the basis of mere suspicion. See Adeniji v. State (2001) 12 NWLR (pt.730) 375, Theophilus v. State (1996) 1 NWLR (pt.423) 139, Onafowokan v. State (1987) 7 SCNJ 1, The State v. Okpala (2012) LPELR – Okoro v. State (1988) 12 SCNJ 191, Blessing v. FRN (2012) LPELR-9835 CA; (2013) 12 WRN 36, Garba v. State (2011) 14 NWLR (pt.1266) 98.” PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the judgment of Jigawa State High Court in Charge No. JUD/20C/2000, delivered on 30th August, 2004 by Hon. Justice Tijani Abdullahi, wherein the learned trial Judge convicted the Appellant, together with other accused persons, for offence of Criminal Conspiracy and Armed Robbery, and sentenced him (with the others) to death by hanging.
At the lower Court, Appellant (as 4th Accused person) was charged, with 8 other accused persons, as follows:
FIRST HEAD OF CHARGE:
”That you, Muhammed Usman, Muhammed Adamu, Musa Sale, Abdullahi Muhammed, Ya’u Sale, Adamu Muhammed, Muhammed Rabi’u, Muhammadu Adamu, Dahiru Buba Kiyawa on or about 1st day of September, 1998 at about 0200 hours at Kwanar Dogaji Village along B/Kudu/Kano Highway in B/Kudu Local Government Area of Jigawa State within the Jigawa State Judicial Division agreed to do an illegal act to wit: mounting a road block with logs of wood, attacking one Abdullahi Daiyabu Sara and one Dr. Umar Hamman and robbing them of the sum of Thirty thousand, six hundred Naira (N30,600.00), 2 sets of big gowns, 3 long gowns, five caps and a bed sheet in-their vehicle with Registration No. AA 159 GRM and you thereby committed an offence punishable under Section 5(b) of the Robbery and Firearms (Special Provisions) Act (Cap 398) 1990 as amended by Decree No.9 of 1991.”
2ND HEAD OF CHARGE:
“That you, Muhammed Usman, Muhammed Adamu, Musa Sale, Abdullahi Muhammed, Ya’u Sale, Adamu Muhammed, Muhammed Rabi’u, Muhammadu Adamu, Dahiru Buba Kiyawa on or about 1st day of September, 1998 at about 0200 hours- at Kwanar Dogaji Village along B/Kudu/Kano Highway in B/Kudu Local Government Area of Jigawa State within the Jigawa State Judicial Division agreed to do an illegal act, to wit: robbing a lorry Driver one Ali Doctor and his Conductor, one Balarabe Ibrahim in their vehicle with registration No. XC 191 GME, the sum of thirty-nine thousand Naira (N39,000.00) and other valuable properties and you thereby committed an offence punishable under Section 5(b) of the Robbery and Firearms (Special Provisions) Act (Cap 398) 1990 as amended by Decree No. 9 of 1991.”
3RD HEAD OF CHARGE:
“That you, Muhammed Usman, Muhammed Adamu, Musa Sale, Abdullahi Muhammed, Ya’u Sale, Adamu Muhammed, Muhammed Rabi’u, Muhammadu Adamu, Dahiru Buba Kiyawa on or about 1st day of September, 1998 at about 0200 hours at Kwanar Dogaji Village along B/Kudu Kano Highway in B/Kudu Local Government Area of Jigawa State within the Jigawa Judicial Division did an illegal act to wit: committing armed robbery by blocking the road with logs of wood among yourselves with sticks, a dane gun and matchets and other dangerous weapons and attacking and robbing one Abdullahi Daiyabu Sara and one Dr. Umar Hamman of the sum of Thirty thousand, six hundred Naira (N30,600.00), 2 sets of big gowns, 3 long gowns, five caps and a bed sheet in their vehicle with Registration No. A.A. 150 GRM and you thereby committed an offence punishable under Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act (Cap 398) 1990 as amended to Decree No. 9 or 1991.”
4TH HEAD OF CHARGE:
“That you, Muhammed Usman, Muhammed Adamu, Musa Sale, Abdullahi Muhammed, Ya’u Sale, Adamu Muhammed, Muhammed Rabi’u, Muhammadu Adamu, Dahiru Buba Kiyawa on or about 1st day of September, 1998 at about 0200 hours at Kwanar Dogaji Village along B/Kudu Kano Highway in B/Kudu Local Government Area of Jigawa State within the Jigawa Judicial Division did an illegal act to wit: committing armed robbery robbing a lorry Driver one Ali Doctor and his Conductor, one Balarabe Ibrahim in their vehicle with registration No. XC 191 GME, the sum of Thirty-nine thousand Naira (N39,000.00) and other valuable properties and you thereby committed an offence punishable under Section 1 (2)(b) of the Robbery and Firearms (Special Provisions) Act (Cap 398) 1990 as amended by Decree No .9 of 1991.” (See Pages 57 and 58 of the Records)
After hearing the case and considering the evidence and the addresses of Counsel, the trial Court held, as follows:
“In the light of the foregoing, I hold, without any hesitation, that all the accused persons, having confessed the commission of the offence can be convicted, their retraction notwithstanding.
It is pertinent at this stage to pause and state that, apart from the confessional statements of the accused persons, there is the evidence of PW1 and PW6. PW1 gave a graphic details of how he and his friend were robbed. The evidence of PW1 that he was able to see and identify those who robbed them, because the full light of the headlamps of his car was on, is further confirmed or corroborated by the evidence of PW6, DSP Asuquo who led the team of Policemen who went to the scene of the offence. Both the two witnesses strike me as truthful witnesses and I believe their testimonies.
In the final analysis and in the light of the totality of the evidence adduced by the prosecution, I make the following findings of facts:
(1) That on 31st day of August, 1998, the accused persons met at Gadar Maiwa Market and the purpose of their meeting was to arrange where they would go and mount a road block so as to rob people of their belongings.
(2) That the meeting at Gadar Maiwa where the accused agreed among themselves to commit the offence of armed robbery had the following people in attendance:- (1) Ahmadu Oga; (2) Ahmadu Miya; (3) Dahiru Kiyawa; (4) Mohammed Adamu (alias Baba Duppukel); (5) Ya’u Sale (alias Doctor); (6) Adamu Mohammed; (7) Musa Sale (8) Mamman Rabi’u (alias Doctor) (9) Abdullahi Mohammed Dagaje; (10) Mamuda; (11) Sule and (12) Ahmadu.
(3) That in furtherance of their agreement, the accused persons went to Birnin Kudu – Kano High Way at a Village called Dagaje and mounted a road block.
(4) That the vehicle in which PW1 and his friend were inside came to the road block mounted by the accused persons and could not pass through it.
(5) That the vehicle of PW1 stopped at the said road block and that some of the accused persons rushed to the said vehicle and demanded (sic) money from PW1 and his friend.
(6) That when PW1 stopped at the roadblock he put the full light of his car on in order to see clearly what was the position of the place.
(7) That through the beam light of his car he saw a lot of people ranging from 15 to 20 dressed in tattered rags holding dangerous weapons such as guns, daggers and sticks.
(8) That PW1 was brought out of the car by some of the accused persons and was also slapped.
(9) That when he was dragging not to come out of the car 2nd accused fired a shot at the windscreen of his car.
(10) That the 3rd accused struck him with a dagger on the head and he (PW1) sustained injuries on the head.
(11) That the accused persons forcibly took away the sum of N30,000.00 from him in N50, denomination. They also took away N600 and £1,500 pounds sterling.
(12) The accused also robbed PW1, his friend and other victims of the robbery, their clothings including two sets of big gowns and three sets of Kaptans, a pair of shoes and about four or five caps.
(13) That when the accused persons were robbing their victims, policemen in a pick up came and fired some shots in the air and the accused persons took to their heels.
(14) That as the victims were trying to make statement at B/Kudu Police station, the first accused who was arrested with the brief case of one of the victims whilst trying to board a vehicle at Kwanar Babaldu was brought to the Police Station.
(15) That it was the 1st accused who led the police to the places where the other accused persons were arrested, except the 9th accused person who was arrested some months later.
(16) I therefore find as a fact that the prosecution has proved all the ingredients of the four heads of charge against all the accused persons. I therefore find all the accused persons guilty as charged and convict them accordingly. (See Pages 78 to 80 of the Records of Appeal). Dissatisfied with that decision, Appellant filed this appeal, as per the Amended Notice of Appeal, dated 4/4/2021, which formulated 4 grounds of appeal. Appellant filed his brief arguments on 15/12/21 which was deemed duly filed on 20/9/2022 – the date this Appeal was heard.
He donated three issues for the determination of the appeal, as follows:
(a) Whether the prosecution has proved its case beyond reasonable doubt based on the contradictory testimonies of PW1, PW3 and PW6 and whether these contradictions contained in the testimonies of PW1, PW2 and PW3 were not sufficient to raise reasonable doubt in the mind of the trial Court to warrant acquittal. (Ground 2)
(b) Whether the trial Court in relying on Exhibits 14 & 15 (1D1 & 1D2) being purported confessional statements of Appellant in the course of the proceeding and the record of the Court, demonstrated and strictly apply (sic) legal test required by law regarding conviction based on confessional statement, and whether adequately considered all the defence (sic) raised by the Appellant in his defence. (Ground 1)
(c) Whether the prosecution by credible evidence discharged burden of proof on it to warrant a conviction. (Ground 3)
The Respondent filed its brief on 13/4/2022 (which was also deemed duly filed on 20/9/2022). Respondent distilled a sole issue for determination, namely:
“Whether the lower Court was right to have convicted and sentenced the Appellant based on the confessional statement of the Appellant, together with the evidence of PW1, PW3 and PW6.”
Arguing the appeal, learned Counsel for the Appellant, Baba Shehu Ahmad, Esq., on issue 1, said there were contradictions in the evidence of PW1, PW3 and PW6 and same were sufficient to raise reasonable doubt to warrant the acquittal of the Appellant. Counsel relied on the case of Dagayya Vs State (2006) NWLR (Pt.980) 637 for the meaning and effect of contradictory evidence. On the evidence of PW1, Counsel referred us to Page 14 of the Records, where Counsel quoted PW1, as saying:
“The 4th accused, I did not see him at the scene of the incident. There were other people by the roadside, but could not catch a glimpse of the 4th accused person…”
On the other hand, Counsel said the PW6 said, under cross-examination: “The Ex-Chairman was able to identify all the accused persons… I based my opinion on their statements and identifications by the Ex-Chairman as well as driver of the long lorry conduct.” (Page 28 of the Records of Appeal).
Counsel said there was no re-examination on that cross-examination to reconcile the testimonies of PW1 and PW6. Counsel also relied on the case of Attah Vs State (2010) LPELR 597 (SC), Agbo Vs State (2006) 6 NWLR (Pt.977) 564 and Dagayya Vs State (supra), on the effect of contradictions in evidence in a criminal trial.
On issue 2, Counsel said the trial Court was wrong to rely on the Exhibits 14 and 15 (confessional statements) to convict Appellant. Counsel also listed the ingredients of offence of conspiracy and of armed robbery and submitted that the Prosecution did not establish the same, as required by law. Counsel relied on the case of Aituma Vs State (2006) 10 NWLR (Pt.989) 468, Sunday Vs State (2021) ALL FWLR (Pt.1095) 2435, (among other cases).
Counsel said that the Exhibits 14 and 15 were extracted by torture and so were not voluntary; that Appellant had denied the contents as being true. He relied on the case of Simeon Vs State (2018) 13 NWLR (Pt.1635) 148, where my Lord Kekere-Ekun, JSC, said:
“It is however the practice of the Court not to act on a confessional statement without first testing the truth of the statement by seeking any other evidence, be it slight, that make it probable that confessional (statement) is true.”
Counsel said the Court must look for corroborative evidence to support the confessional statement. He relied on Akpan Vs State (1990) 7 NWLR (Pt.160) 101, Obosi Vs State (1965) NWLR 1999, Bature Vs State (1994) 1 NWLR (Pt.320) 267, Ofordike Vs State (2019) LPELR – 46411 (SC), C.O.P. Vs Alozie (2017) LPELR – 41983 (SC).
Counsel argued that the trial Court had a duty to consider all the defences raised by the Appellant, and urged us to do so, relying on Uluebeka Vs State (2000) LPELR – 3354; Umani Vs State (1988) NWLR (Pt.70) 274; Garba Vs State (2007) LPELR – 1308; Olayinka Vs State (2007) LPELR – 2580; Edibo Vs State (2007) LPELR – 1012 (SC); Gabriel Vs State (1989) 5 NWLR (Pt.122). He added that even if the defence was weak, foolish or contradictory, the Court was still duty bound to consider the same – Oladipo Vs State (1993) LPELR – 2549, Shalla Vs State (2007) LPELR – 3034.
Counsel further said that the totality of the evidence led could not be used to convict Appellant, because his guilt was not certain, as it was not proved beyond reasonable doubt. He relied on Ogu Vs C.O.P. (2018) ALL FWLR (Pt.928) 31. He argued that the trial Court did not properly evaluate the evidence and that it made perverse findings; Counsel said that same should be interfered with by the Court and reversed. He relied on Oyedeji Vs Akinyele (2002) 3 NWLR (Pt.755) 616, State Vs Ajie (2000) 11 NWLR (Pt.678) 449.
On issue 3, Counsel said the Prosecution did not discharge the burden of proof to warrant Appellant’s conviction. He relied on Section 135(1) (2) of the Evidence Act, 2011, on the standard of proof. He asserted again that the conspiracy was not proved and that critical witnesses were not called. He relied on Adamu Vs State (2019) LPELR – 46902 SC; Amachree Vs Nigerian Army (2003) 3 NWLR (Pt.807). Counsel added that the refusal or failure to call the said critical eye witness(es) amounted to withholding of evidence, and urged us to invoke Section 167(d) of the Evidence Act, 2011, against the Respondent.
Counsel urged us to resolve the issues for the Appellant and to allow the appeal.
The Respondent’s Counsel, Aisha Ado Abdullahi (Miss.), arguing their lone issue, submitted that the lower Court was right in convicting the Appellant on all the four counts of the charge, relying on the confessional statement he made and testimonies of PW1, PW3 and PW6. She relied on the case ofOfordike Vs State (2019) 5 NWLR (Pt.1666) 395 at 399 – 402, on the effect of confessional statement and what constitutes a confessional statement.
Counsel referred us to what Appellant said at the trial-within-trial to admit the said confessional statement; that, under examination in chief, he (Appellant) said:
“What is in the statement is not true. The statement was not read to me. Bala Umar held my finger and thumb printed it on the statement.”
And under cross-examination:
“It was the first day that we were taken to Dutse CID that my statement was recorded.” (See Page 33 of the Records) Counsel said that the above showed that Appellant was no longer objecting to the statement he made on grounds of involuntariness, but that he retracted the statement; Counsel said that by the case of Ofordike Vs State (Supra) the statement can still be admitted once it is based on the issue of not making the statement. Thus, Counsel said the trial Court was right to admit the statement after the trial-within-trial and to rely on it for the conviction of the Appellant. She referred us to the ruling of the trial Court in admitting the said statement, when it said:
“I have no doubt in my mind that the accused were cautioned before their statements were recorded. They were not only cautioned but voluntarily made their statements…” (Page 36 of the Records)
Counsel said that even without the said confessional statement, the lower Court still had sufficient evidence to convict the accused persons that the testimonies of PW1, PW3 and PW6 were strong on the Issue and the same were not contradictory as alleged by the Appellant’s Counsel.
Counsel said there was no contradiction as PW1, who did not identify Appellant, later did so, when invited to the Police Station as investigation progressed. Counsel further argued that not all the person’s arrested were tried as some were discharged at the Police Station in the course of investigation; that PW6 had said that those that owned up the charge were the ones taken into custody and later tried; she added that, by law, only material contraction in evidence can affect the decision of the lower Court.
On the burden of proof, Counsel said that the Prosecution proved the charge, beyond reasonable doubt; that the ingredients of the offence were established. She relied on the case of Sunday Vs State (2021) ALL FWLR (Pt.1095) 2435 at 2450 for the ingredients of armed robbery, namely:
(a) That there was, indeed, a robbery or series of robberies;
(b) That the robbers were armed with dangerous weapons; and
(c) That the accused person was the robber or one of them.
Counsel said that the above elements of the offence were established in this case, and urged us to dismiss the appeal.
RESOLUTION OF THE ISSUE
I shall consider this appeal on the 3 issues donated by the Appellant, which I think could be summarized into one namely: “Whether the trial Court was right to convict the Appellant of involvement in the conspiracy to rob and the armed robbery, relying on the retracted confessional statement and the evidence of PW1 and PW6 (alleged to be contradictory by the Appellant).”
The above summarized issue tends to agree with the context of the lone issue donated by the Respondent. Appellant did not raise any issue against the ground 4 of the appeal, which alleged that the judgment was against the weight of the evidence. The said ground 4 of the appeal is, accordingly, struck out, same having been abandoned.
There was no doubt that there was a robbery on or about 1st September, 1998 on Birnin Kudu – Kano Highway, at Kwanar Dogaji Village in Birnin Kudu Local Government, whereof the robbers, who were armed with dangerous weapons, robbed victims, including PW1 of their valuables. The question whether the Appellant was one of the robbers, was answered in the affirmative by the learned trial Judge, who founded Appellant’s conviction on the confessional statement (Exhibit 15) he was said to have made to the Police, as well as the evidence of the eyewitnesses – PW1 and PW6, in particular.
Appellant in this appeal had faulted the reliance of the Court on the said confessional statement (which he said was induced and obtained by torture, and he had since retracted it). Appellant’s Counsel also argued that the evidence of PW1 and PW6 were contradictory and could not sustain the conviction of Appellant for the conspiracy and for the armed robbery. Counsel argued that the PW1 had stated, on page 14 of the Records of Appeal, that he did not see the Appellant at the scene of the robbery, whereas, the PW6, under cross-examination, said:
“The Ex-Chairman (PW1) was able to identify all the accused persons… I based my opinion on their statements and the identifications by the Ex-Chairman as well as Driver of the long Lorry and the Conductor…” (Page 28 of the Records).
I cannot however see any conflict or contradiction in the evidence of the two witnesses, listed above. But I shall nevertheless subject the said evidence by the two, which appear to complement each other, to scrutiny.
PW1 (Abdullahi Daniyabu) had said more than what learned Counsel for Appellant lifted. Apart from saying:
“The 4th accused (Appellant), I did not see him at the scene of the incident.” Page 14 lines 12 & 13.
The PW1 had also, said:
“There were other people by the roadside, but I could not catch a glimpse of the 4th accused person. It was the 1st accused person who was arrested at Babaldu and brought to B/Kudu Police Station while we were writing our statements when he was brought to the station, he had with him N13,000 in N50 Notes… and based on interrogation and in my presence he was able to tell us that he was part of that robbery incidence (sic) and he was given a share of N13,000 and he was asked of the pound sterlings was taken away by his colleague. When he was asked who was his colleague, he said it was Dahiru… (9th accused) person… later on, was invited to the Police Headquarters, Dutse, and the accused persons where (sic) brought out and I identified them as those who robbed me on the day of the incident.” (See Page 14 (lines 13 to 27) of the Records)
Under cross-examination PW1 said:
“Yes, I gave a graphic story of what happened on the day of the Robbery. I saw an army of people ranging between 15 and 20, but I did not specifically state their number. After I was beaten I was asked to lie down. It was after I was lying down that they removed these things from my car, after one of them had destroyed the windscreen of the car…
Though I was lying down my eyes were not on the ground. Was watching to see what they were doing… The house for which the things were asked to be taken by their conversation must be on the western side of road… I immediately identified him (1st accused) as one of those who robbed me. And also identified the arrest (sic) of the accused persons when they were subsequently arrested. They were brought out and I was asked to identify them.” (Page 17 of the Records)
I think the above evidence of the PW1 were consistent, as the robbers were many, including those on the roadside, and he said he was able to identify them as they were arrested, as the investigation progressed, with the arrest of the 1st accused who led the Police on to the other accused persons. But the fact that PW1, clearly, said he did not see or catch a glimpse of the 4th accused (Appellant) needs some serious consideration.
PW6, a Senior Police Officer, Effiong Asuquo (DSP) had told the Court:
“Policemen at Babaldu Police Post brought the 1st accused to the Police Station with one black briefcase (handbag). He was arrested while boarding a vehicle to Ningi, when the briefcase was identified by the conductor of the lorry that was robbed… The former Chairman, and the Driver of the lorry, identified the 1st accused as one of those that robbed them… We questioned (him) about the others who took part in the Robbery, and he said they all ran away, and we asked him how we could get them. He informed us that some would go to Sara Market that day… We went to that market with the 1st accused and we disguised his appearance so that they would not recognize him… he saw three of them who he identified as members of the gang. We arrested them… At the park, he saw one of them and we arrested him… We brought all of them (5) to the Police Station and they all made statements owning up the crime… We were able to arrest four of them as pointed to us by the 1st accused…”
See Pages 26 to 27 of the Records.
Apparently, PW6, also a witness of the Robbery, as he led a team of Policemen that trailed and eventually dislodged the Robbers. He had earlier, in his evidence in chief, given account of how they monitored the robbers, undercover and shot in the air to scare them away from the victims, as it was dangerous to open fire at them, for fear of hitting the victims!
Under cross-examination, PW6 said:
“A driver who was able to escape the attack of the armed bandits informed my men at the counter. He took 9 of my men in the Land Rover to the scene.
The Ex-Chairman was able to identify all the accused persons. We did not conduct an identification parade because the event in this did not call for that. I based my opinion based on their statements and the identification by the Ex-Chairman as well as Driver of Lorry and the conductor. We were close to them. The Robbery happened between 2.00am – 3.00am. When we went to the scene, the two head lamps of Honda Car were on. There was sufficient light in the placed to enable the accused being identified.” (Page 28)
Like the other accused persons, the Appellant allegedly made confessional statement to the Police, (which he later retracted).
The law is trite that a Court can still convict an accused person even on the basis of his confessional statement, alone, though the statement is denied or retracted at the trial, once the Court adjudges same to have been given, voluntarily. Also, where there are other pieces of evidence at the trial to corroborate the confessional statement, the Court can convict on the same. The authorities on this are replete. See the case of Sani Vs State (2020) LPELR – 53905 (SC), where it was held:
“It is certainly not the law that a Court cannot convict an accused solely on his confessional statement if found to be a clear, positive and direct admission of the commission of the offence with which the accused is charged. This Court has endlessly held that where, as in the case at hand, an accused resiles from his extra-judicial statement, he may still be convicted on the basis of the very voluntary statement if same is corroborated and shown to have indeed been made freely by the accused. The Court has, over the years, imbibed the tests laid in R v. Sykes (1913) 8 CAR. 233 at 238 and admonished trial Courts to obey the rules outlined therein before convicting and accused. See Afolabi v. State (2016) 4 SC 86 at 90, (2016) 11 NWLR (Pt. 1524) 497, Sahalatu Shazali v. State (1988) LPELR – 3040 (SC) (1988) 5 NWLR (Pt. 93) 164 and Rasheed Lasisi v. The State (2013) LPELR – 20183 (SC); (2013) 9 NWLR (Pt. 1358) 74.” Per MUHAMMAD, JSC
In the recent decision of this Court in the case of Gambo Sule Vs Kano State (2022) LPELR – 57542 CA, we held as follows:
By law, a confessional statement is sufficient to lie a conviction, even if retracted by Appellant, once the Court find substance in it, and same is corroborated by other pieces of evidence. The evidence of the eye witness account (PW1 and PW6) were strong to corroborate the confession of Appellant to robbery against the Appellant and were even alone, capable of establishing the offence, in my opinion. See the case of Hussein Vs The State (2022) LPELR-57021 (CA), where we held: “Only recently, we had course to restate the law in the case Kabiru Bala v The State (2022) LPELR-56737, on confessional statement as the best evidence to work with and to convict on, once the statement is adjudged credible and made voluntarily by the accused person. We held, thus: “By law, a confessional statement is enough evidence, and, in fact the best evidence, to establish commission of offence, coming from the accused person himself where the confession is adjudged voluntarily made. See the case of Uhara Vs The State (2021) LPELR- 55512 (CA): “We have held several times that a confessional statement alone is a conclusive and sufficient evidence to establish conviction, and, in fact, the best evidence of the commission of the offence, coming directly from the accused person himself, and closing every door of defence against him, except where the issue/defence of provocation can be invoked. See FRN Vs Iweka (2011) LPELR-9350 SC, where it was held that confessional statement is the best evidence of proof of crime and can be accepted as satisfactory evidence, upon which alone the accused can be convicted. See also Ogoala Vs The State (1991) 2 NWLR (Pt.175) 509 at 534.”
Appellant’s statement was admitted as Exhibit 15 after trial-within-trial as his recorded statement. At the trial Court, Appellant testified as DW4 and said that he was not arrested by the Police, as he took himself to the Police, because of the arrest of his wife; that the Police had been looking for him and his wife in connection with the offence and had arrested his wife; that the Police released his wife, when he showed up; he said that he was living in the Village, prior to his arrest; he said that the Police had asked him about how a big log of wood found very close to his house, was moved onto the main road; he told them that he did not know, but the Police did not believe him, insisting that there was no way that such a big log of wood could be moved to the main road without his knowing it; he said that he was beaten and tortured to admit the offence; that two of his teeth fell off as a result of the beatings, that he was asked questions about himself, family, the log of wood and how it was moved to the road; he said that CPL. Bala (PW3), who recorded the answers later forced him to thumbprint on the paper he wrote on and that was after threats to kill him, as a dog, if he failed to sign or thumbprint. Appellant also told the trial Court that the log of wood was in the farm of his neighbour, very close to his house; that his house was very close to the main road. (See Pages 68 to 69 of the Records)
Of course, the trial Court did not believe the denials by Appellant. The confessional statements of some of the accused persons had also implicated him (Appellant) as they mentioned him as one of them.
The 6th accused (Adamu Muhammed) in his statement had said:
“… We were fourteen… in number and hide (sic) in a nearby bush close to one house belong to one old man. I don’t know his name, who later followed us and robbed… We carry the wood and block the road. Same of us were wearing black clothes holding touch lights and dane guns. Later one small vehicle came and (sic) stop the vehicle brought out the people inside the vehicle and took them aside the road and robbed them… Later one big Lorry carrying motor tyres came and stop at the roadblock and we robbed them some money from the passengers…” (See Pages 75 and 76 of the Records)
But the 9th Accused (Dahiru Buba Kiyawa) said:
“… We got some log of wood and block the express way along Birnin Kudu – Kano. Immediately we block the road a small vehicle… came and could not be able to pass. The driver then stop and some of our people asked the two men inside the vehicle to come out of their vehicle and lay (sic) down by the roadside and our people started searching the Peugeot vehicle a lorry came along and could not get way to pass he then hit the Peugeot vehicle and fell down. We ran to search the lorry inside bush… All the people so far arrested in connection to this robbery actually took part, exception of one-man name (sic) Abdullahi.” See Page 77 of the Records.
It would appear Appellant was linked to the robbery by reason of the location (scene) of the robbery, which was in his village, and near his house, and because of the use of the log of wood in his compound (which Appellant said was in a farm near the house, and his belonged to neighbour). The circumstance of the use of the log of wood from his compound or farm near his house, to block the road appeared to have fueled the strong suspicion of the prosecution that 4th Accused was part of the robbery.
But such deduction and suspicion, in my view, would be very dangerous to found Appellant’s conviction, in the face of the evidence of the PW1, an eye witness, who clearly stated the roles played by each of the robbers (except Appellant) at the scene; and he clearly identified them, except Appellant!
In his evidence in-chief, he said:
“If I see those who attacked me that time, I would recognize them. They are now in the Court room. I can identify each of them.” (Page 13 of the Records)
PW1 was permitted to get close to the dock to identify the accused persons, and he did, as follows:
“Pointed the 9th accused person, he is the person who dipped his hand inside my car, held my collar, slapped me and brought me out of the car. In the process of coming out of the car, the 1st accused person shot a pistol gun on front windscreen of my car. The 6th accused person struck my head with a sword and the 8th accused person, Muhammed Ahmadu, beat me with a stick. The 3rd accused person on the charge sheet took a very big stone and threw it on the rear glass of the car which led to the destruction of the glass and that gave him the opportunity to remove all our belongings from boot (sic) of the car. The 5th accused on the charge sheet was “compassionate” he was the person who led us to a roadside to lay (sic) down and was asked to look after us so that we did or could not escape, and he pleaded with them to leave us alone. The 7th accused person along with the 2nd accused were commanding officers of the team and they were sitting by the side of the road giving commands. The 4th accused, I did not see him at the scene of the incident. There were other people by the roadside, but I could not catch a glimpse of the 4th accused person. It was the 1st accused person who was arrested at Banaldu and brought to B/Kudu Police Station while we were writing our statements when he was brought to the station, he had with him N13,000 in N50 Notes.” (Underlining mine) See Pages 13 and 14 of the Records.
It should be noted that that evidence was given by PW1 in Court, on 17/10/2002, more than 4 years after the commission of the offence and the investigation and that, despite the fact that Appellant was arraigned with the said other accused persons, PW1 still said:
“The 4th accused (Appellant), I did not see him at the scene of the incident. There were other people by the roadside, but I did could not catch a glimpse of the 4th Accused person…”
If PW1 had earlier identified the Appellant as one of the robbers at the Police Station, how come he (PW1) did not recognize him (Appellant) in the dock!
I cannot see any evidence from the prosecution that directly linked Appellant to the scene of the armed robbery or commission of the offence. The PW6, did not say anything specific about the 4th Accused person (Appellant); he merely based his testimony on the identification made by the PW1, when he (PW6) said, under cross-examination:
“The Ex-Chairman (PW1) was able to identify all the accused persons. We did not conduct an identification parade because the event in this did not call for that. I based my opinion based on their statements and the identification by the Ex-Chairman as well as Driver of Lorry and the Conductor. We were close to them… There was sufficient light in the place to enable the accused being identified.” (See Page 28 of the Records).
It appears neither the Lorry Driver nor the Conductor was called to give evidence in this case, and so there was no direct evidence from the prosecution on identification of the 4th Accused (Appellant) with the offences – of conspiracy and armed robbery!
Of course, the evidence of the co-accused, naming the Appellant as one of them must be taken with caution, as the law warns against relying on such evidence. See the case of Hassan Vs The State (2016) LPELR – 42554 (SC):
“It is elementary that in a criminal trial, where an accused person incriminates a co-accused in his statement to the police, the statement is evidence only against the maker and not against the co-accused. But if the prosecution, police decides to use the statement against a co-accused, then the prosecution is bound to make the incriminating statement available to the co-accused. See R v. Afose (1934) 2 WACA p. 115.” Per RHODES-VIVOUR, JSC
See also the case of Awo Vs The State (2020) LPELR – 50619 CA, Ajomayan Vs The State (2020) LPELR – 49598 CA and Obinna Vs The State (2021) LPELR – 55847 CA, which states that:
A confessional statement of an accused person, implicating or seeking to implicate a co-accused should always be taken with suspicion, as such confessional statement of a co-accused is no evidence against an accused (Appellant) who has not adopted the statement. See OZAKI & ANOR VS STATE (1990) LPELR-2888 SC, YUSUF & ANOR VS STATE (2019) LPELR 46945 (SC). And such evidence remains against the person who made the confessional statement. See MBANG VS THE STATE (2009) 18 NWLR (Pt. 1172) 157, ALARAPE VS STATE (2001) 2 SC 114; 2001 5 NWLR (Pt. 705).”
Even then, the confessional statement of one of the Accused persons (9th Accused) appeared to have clearly exonerated the Appellant, when he added:
“All the people so far arrested in connection with this robbery took part, exception of one-man, name (sic) Abdullahi.” (Page 77 of the Records of Appeal)
Appellant was consistent when he told the trial Court of his innocence, despite all the beatings and torture he said were meted out to him; he said that he was forced to sign (thumbprint) a statement prepared by CPL. Bala, after threatening to kill him (Appellant). The said statement was admitted in evidence as Exhibit 15 by the trial Court, after a trial-within-trial. Ground one of the Amended Notice of Appeal was on the reliance of the trial Court on the purported confessional statement to convict and sentence him to death.
The said extra-judicial statement of Appellant, which was admitted as Exhibit 15 is reproduced in the Records of Appeal, in its Hausa version (Pages 95 – 97 of the Records). I have not seen the English translation of said statement on the records (which Appellant’s Counsel said was not signed), to understand how Appellant confessed to the crime! But even if Appellant had confessed to the crime, in the circumstances of his beatings, torture and threats to his life as narrated by him on pages 46 to 47 of the Records, such confession cannot be voluntarily! The said evidence of beatings and torture (which resulted in his losing two front teeth), and threat to life was never rebutted by the prosecution, and Appellant was never cross-examined on same! See page 47 of the Records, which records the only cross-examination of Appellant as: “The name of our village is Dagaji”.
I had earlier held that the law permits a trial judge to convict an accused person on the basis of a confessional statement alone, provided the same was made voluntarily and not induced. See Bala Vs State (2022) LPELR-56737 (CA).
In this case, I do not think Appellant’s alleged confessional statement was made voluntarily. The trial Court therefore erred to have held at the trial that it was voluntarily made.
The law is also to the effect that a confessional statement can still be used to convict an accused person, even if retracted or resiled, provided there is/are some evidence before the Court to corroborate the said confessional statement. See Uhara Vs The State (2021) LPELR – 55512 (CA), FRN Vs Iweka (2011) LPELR – 9350 (SC), Husseini Vs The State (2022) LPELR – 57021 CA, Sule Vs Kano State (2022) LPELR – 57542 CA, Sani Vs State (2020) LPELR – 53905 (SC). I have not seen any evidence to corroborate the alleged confessional statement.
The offence was not therefore proved beyond reasonable doubt against Appellant, as the learned trial Court appeared to have lumped all the accused persons, together, when appraising the Prosecution evidence, as to the identity of the Appellant and involvement in the offences, charged. To that extent, I think the 4th Accused (Appellant) was wrongly yoked with the other accused persons.
And his conviction appeared to be founded on speculation and suspicion. By law, suspicion, no matter how strong, cannot replace the evidence needed to found conviction, and any lingering doubt about the involvement of an accused in a crime, has to be resolved in his favour. See the case of Igbikis Vs The State (2017) LPELR – 41667 (SC) and Emesonye Vs The State (2016) LPELR – 40550 CA, where it was held:
“…And suspicion or speculation, no matter how strong, cannot lie a conviction, and is not even a basis for trial of the suspect! The authorities abound that one cannot even be charged to Court on the basis of mere suspicion. See Adeniji v. State (2001) 12 NWLR (pt.730) 375, Theophilus v. State (1996) 1 NWLR (pt.423) 139, Onafowokan v. State (1987) 7 SCNJ 1, The State v. Okpala (2012) LPELR – Okoro v. State (1988) 12 SCNJ 191, Blessing v. FRN (2012) LPELR-9835 CA; (2013) 12 WRN 36, Garba v. State (2011) 14 NWLR (pt.1266) 98.”
I can therefore see merit in this appeal, and so resolve the issue for Appellant and allow the appeal. The decision of the trial Court, delivered on 31/8/2004, is therefore set aside, in respect of the 4th Accused person (Appellant herein). I therefore enter a verdict of discharge and acquittal for him in the said offences of the Conspiracy and Armed Robbery. I order his release from Prison/Correctional Centre, forthwith.
BOLOUKUROMO MOSES UGO, J.C.A.: I have earlier read in draft the leading judgment of my learned brother, ITA. GEORGE. MBABA, J.C.A and I am in agreement with His Lordship’s reasoning and conclusion allowing the appeal. This appeal once again brings to the fore the need to always subject confessional statements to the six-way test of R V. SYKES (1913) 8 CAR 233 adopted by our Courts in several cases including SIMEON V. STATE (2018) 13 NWLR (PT 1635) 148. Appellant was wrongly convicted on his very dubiously obtained confessional statement and justice was miscarried, which this Court has a duty to set right.
In the event, I also quash the conviction of the appellant by the lower Court and, in its place, allow his appeal and enter an order acquitting and discharging him of the charges against him.
I abide by His Lordship’s consequential orders, including the orders for appellant’s immediate release from detention.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the ruling delivered by my learned brother, ITA GEORGE MBABA, JCA and I am in complete agreement with the reasoning and conclusion reached that the appeal is meritorious. I too allow the appeal and set aside the decision of the trial Court and abide by all other consequential orders as contained in the lead judgment.
Appearances:
BABA SHEHU AHMAD, ESQ. For Appellant(s)
AISHA ADO ABDULLAHI, (MISS) For Respondent(s)
