MUSA AHMAD v. THE STATE
(2018)LCN/12132(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of November, 2018
CA/S/47C/17
RATIO
EVIDENCE: WHERE AN EXTRA JUDICIAL CONFESSION HAS BEEN PROVED
“It is trite that where an extra-judicial confession has been proved to have been voluntarily made and it is positive and unequivocal and amounts to an admission of guilt? it will suffice to ground a finding of guilt. In other words the confession of the Appellant alone in this case as is contained in Exhibit A and A1 even without corroboration is good enough to support a conviction as this Court is satisfied that the confession is true. Indeed nothing has happened to impugn on the integrity of the confessional statement of the Appellant. See the case of OLOYE V THE STATE (2018) LPELR 44775 SC where the Supreme Court Held that: “What is more, it has long been established in law that ordinarily, a free and voluntary confession of guilt by an accused person, whether judicial or extra judicial, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant a conviction even without any corroborative evidence. The most important thing is that the Court must be satisfied that the said confession is direct and positive and is properly proved, before acting on it without corroboration”. “PER ABDULLAHI MAHMUD BAYERO, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
MUSA AHMAD Appellant(s)
AND
THE STATE Respondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delievering the Leading Judgment):
This is an Appeal against the judgment of the High Court of Sokoto State delivered by A S Dahiru C.J. on 11th February, 2016, convicting and sentencing the appellant to 12 years imprisonment without option of fine; and to pay compensation of N1, 000,000 to the nominal complainant. The Appellant was arraigned on a charge of Armed Robbery against one Muhammad Sani contrary to Section 298 of the Penal Code Law, in that on or about the 15th day of December, 2010, at about 05:00hrs at Gawakuke village Rabah Local Government Area of Sokoto State within the jurisdiction of the honourable Court, the appellant went to the bush with the said Muhammad Sani under the pretence of buying onion, and attacked him with cutlass; and took away the sum of N150,000 from him. Upon arraignment on 7th March, 2014 the Appellant pleaded not guilty to the charge and the prosecution called four witnesses (PW1 – 4) in proof of its case. At the end of the prosecution’s case the Appellant through his counsel rests his case on that of the prosecution. Both the prosecution and the defence addressed the lower Court orally.
The gravamen of the learned trial judge’s decision can be found at pages 55 – 56 of his judgment (33-34) of the Record of Appeal wherein he held inter alia:- “In reaching this conclusion, the Court is not unmindful of the submission by Mr. Shettima for the accused that the prosecution did not prove armed robbery because the weapon of the robbery was not tendered by the prosecution. It is trite that whether or not the prosecution needs to tender the weapon with which the accused allegedly committed robbery depends on the character and circumstances of the case. It was thus held in OLAYINKA V THE STATE 9 NWLR (PT 1040) Pg 561 that since there was no assertion from the prosecution witnesses that any weapon was recovered from the accused, proof of the weapon of the alleged armed robbery is not necessary That is also the position in this case; and it is for that reason that the accused is convicted and sentenced to 12 years of imprisonment without the option of fine.
The sentence will commence from 11/1/2011 when he was 1st remanded by the Court. The sum of N 1,000,000 is also awarded as compensation to the victim of the incident Muhammad Sani Asara. Aggrieved by his conviction and sentence as stated above, the appellant in his amended Notice of Appeal dated 15th May, 2017 and filed on 23rd May, 2017 anchored his grouse on three grounds and filed separately from the Record.
Upon transmission of the Record of Appeal to this honourable Court, briefs were duly exchanged in line with the Rules of Court. In the Appellant’s brief settled by his counsel B. M. Muqqadam Esq. three issues distilled from the grounds are formulated for determination thus:
1) Whether or not the lower Court was right in convicting and sentencing the Appellant to 12 years imprisonment on the ground of purported confessional statement of the Appellant as contained in exhibit A and A1 and upon the uncorroborated evidence of PW1 and PW2.
2) Whether or not the lower Court was right in convicting and sentencing the Appellant to 12 years of imprisonment when the guilt of the Appellant was not proved beyond reasonable doubt by the prosecution.
3) Whether or not the lower Court was right in granting an order for compensation in the sum of One Million Naira against the Appellant and in favour of the nominal complainant when no evidence was led either documentary or otherwise to prove how the loss was incurred.
In the Respondent’s brief settled by his counsel Paul M. Kassim Esq. three issues are formulated for determination thus:
1) Whether the learned trial judge was right when he held that the ingredients of the offence of Armed Robbery have been proved beyond reasonable doubt.
2) Whether the trial judge was right in law when he convicted the Appellant
I intend to determine this Appeal based on the three issues formulated by the appellant; after all it is his Appeal.
Arguing the first issue, the learned counsel for the Appellant referred to page 47 lines 2-3 of the printed record where the lower Court held that: “In proving whether the accused committed theft evidence of PW 1 and PW 2 as well as the statement the accused made to the police are relevant”.
Learned counsel also referred to page 51 line 8-17 of the printed record where the lower Court held: “there was evidence of PW 2 that the accused confessed at Rabah Station of taking the said sum of money from his room in Gawawuke in Sokoto. Evidence of PW 2 that the accused confessed that he took N 150,000 is corroborated by the statement the accused made to the police at CID office. Exhibits A and A1 in which the accused stated he told lies to the police at Rabah Police station, when he told them he gave the money to Mai Nasara and that he actually gave the money to one Shehu A Shehu. It is clear from the foregoing therefore, the prosecution were able to prove the offence of theft against the accused person.
According to the appellant counsel, at Page 52 lines 1-2 the lower Court held that: – “I therefore hold that the prosecution proved the 1st ingredient of the offence of Robbery which in this case was theft.” Learned counsel referred this honourable Court to pages 25-27 of the record of Appeal and answered the 1st issue in the negative. On whether exhibits A and A1 qualify as confessional statements with any probative value, he answers in the negative and in so doing submitted, that PW 4 only gave evidence of how he recorded the statement of the Appellant, in the absence of his legal practitioner as reflected on page 50 of the Record of Appeal. Counsel referred to the case of OWHORUKE V COMMISSIONER OF POLICE (2015) ALL FWLR Part 801 Page 1401 where the Supreme Court Held: “The Court of Appeal described the defence of the Appellant as confused, this is true, the reason is simple, the Appellant did not have service of a legal practitioner when he wrote exhibit A, a day after the incident. It must be noted that most crimes are committed with little or no education, consequently, they are easily led by the investigating police officer to write incriminating statements which legal mind find almost impossible to unravel and resolve.
Confessional statements are most times beaten out of suspects and the Court usually admits such statements, and the counsel and the accused are unable to prove that the statement was not made voluntarily. A fair trial presupposes that police investigation of the crime for which the accused person stands trial was transparent in that regard. It is time for safeguard to be put in place to guarantee transparency; it is seriously recommended that confessional statement should only be obtained from the suspect if and only if his counsel is present or in the presence of legal representative. Where this is not done such confessional statement shall be rejected by the Court.”
Learned counsel urged this honourable Court to hold that the confessional statements of the Appellant made and obtained in the absence of his counsel goes to no issue. According to counsel, the confessional statement (exhibit A and A1) was neither signed by the Appellant nor by his legal practitioner, he referred to the case of COLITO NIG LTD. V DAIBU (2010) 6 WRN Pg 72 at Pg 81 Ratio 10 and urged this Court to hold that it is a worthless document. Counsel referred to pages 27-29 and page 51 of the record of Appeal, where PW 1 and PW 2 testified respectively and submitted that there was no corroboration between the two testimonies, indicating that an axe was used by the appellant in inflicting injury on the victim. He urged this Court to resolve issue number one in favour of the Appellant.
On issue number two, counsel submitted that the Appellant was charged with the offence of Armed Robbery contrary to Section 298 of the Penal Code, as such by Section 135 (1) of the Evidence Act the prosecution must prove all the essential ingredients of the offence beyond reasonable doubt. According to counsel, the prosecution have failed to prove any of the ingredients for the commission of the offence of Armed Robbery as clearly laid down by the Supreme Court in the case of ALUFOHAI V THE STATE (2015) 3 NWLR Pt 1445 Pg 172 at 176 Ratio 3 and AKWUOBI V THE STATE (2017) 2 NWLR Pt 1550 Pg 421 at 428 R 10 where the Apex Court held that: “Offence of Armed Robbery can be established by proof of the following:-
a) That there was a robbery or series of robberies;
b) That each or any of the robbers was armed at the time of the robbery operation;
c) That the accused person was one of the robbers or had
taken part in the robbery operation.”
In order to establish whether the ingredients for the offence were established by the prosecution against the appellant, learned counsel referred to the testimonies of PW 1 and PW 2 as reflected on pages 27-32 of the record of Appeal, and exhibits A and A1 respectively, and submitted that the prosecution failed to prove the offence beyond reasonable doubt against the Appellant.
He referred to the case of ADEKOYA V THE STATE (2017) SCNJ Pg 62 at 65 R2 where the Court held that: “In criminal matters such as the one we are faced with, the standard of proof is beyond reasonable doubt, this is a principle that is fundamental and sacrosanct and in establishing that required standard of proof all the essential elements or ingredients must be proved on that standard. This is because the ingredients are cumulative and none be found lacking before the proof beyond reasonable doubt is said to have been met. Therefore where all the vital ingredients are established altogether beyond reasonable doubt the Court is enable to convict the accused.”
Counsel urged this Court to resolve the second issue in favour of the appellant by allowing the Appeal. On issue number three learned Appellant’s counsel submitted that order of compensation is made to defray the expenses incurred; that in this case no expenses was incurred by the nominal complainant, apart from the sum of N 150,000.00 alleged to have been kept in the room of the Appellant which counsel argued was not corroborated by independent evidence.
Learned counsel further referred to Section 365 of the Criminal Procedure Code which provides: “Whenever under any law in force for the time being a criminal Court imposes a fine, the Court in passing judgment order that in addition to a fine a convicted person shall pay a sum:
a) In defraying expenses properly incurred in the course of prosecution;
b) In compensation in whole or in part for the injury caused by the offence committed, where substantial compensation is in the opinion of the Court recoverable by civil suit;
c) In compensating an innocent purchaser of any property in respect of which the offence was committed who has been compelled to give up;
d) In defraying expenses incurred in medical treatment of any person injured by the accused in connection with the offence”
According to counsel in light of the above Section and the case of MARTINS V C.O.P. (2013) 4 NWLR Pt 1347 Pg 25 at 29 Ratio 2 the lower Court ought not to have awarded the compensation. He urged this honourable Court to allow the Appeal, set aside the Judgment of A.S. Dahiru CJ delivered on 11th February, 2016 and quash the order of compensation.
In response, learned counsel for the Respondent adopted the issues for determination formulated by the Appellant’s counsel, and submitted that on issue number one raised by the Appellant’s counsel, the prosecution tendered exhibits A and A1, which are statements made by the accused person at the police station, confessing to the said crime. That the said confessional statement was not retracted and neither was there any issue raised as to its voluntariness. According to counsel in law such firm and unequivocal statement is enough to secure a conviction. Counsel referred to the case of SHURUMO V STATE 19 NWLR Pt (1226) Pg 73 where it was held by Fabiyi JSC thus: “in my considered opinion, the confession in exhibits b and c by the Appellant was enough to nail him on the count relating to conspiracy.
He failed to wriggle himself out of it. After all if a confessional statement is satisfactory, a conviction found on it is as herein will be sustained by an Appellate Court.” Counsel submitted that the Appellant made the confessional statement voluntarily; and urged this Court to affirm the decision of the lower Court which is firmly rooted in extant principles of law in that regard. He made reference to pages 43-57 of the Record of Appeal and opined that there is nothing in the confessional statement vitiating same.
The Respondent’s counsel submitted that what the Appellant told the lower Court was he did not make the confessional statement as shown at page 36 of the Record of Appeal; but he did not challenge it’s voluntariness, which is the only ground it would have been rejected after the legal test of trial within trial. He cited the case of ISONG V THE STATE (2016) LPELR 40609 (SC).
According to counsel, the ingredients of Armed Robbery as established before the lower Court are set out in Section 298 of the Penal Code. He referred to the case of OGOGOVIE V STATE (2016) LPELR ? 40501 (SC) in which the Supreme Court held thus: “The law has also established the mode of proving the offence of armed robbery or any offence for that matter, to include any of the following:
1) By evidence of eye witness
2) By confessional statement of the accused; or
3) By circumstantial evidence where any of the two above are lacking.”
The Appellant’s counsel referred to pages 27-38 of the Record of Appeal, more especially the evidence of PW 1, 2, 3 and 4 and exhibits A and A1 and submitted that PW 1 (the victim) testified about how the Appellant lured him to a lonely path, at the early hours of the day, under the pretence of taking him to a village where he can buy onions at a cheaper rate. But unknown to PW 1, the Appellant had devilish agenda to axe him to death so that he can rob him of his money.
Counsel submitted that the evidence of PW 1 was not challenged or denied during cross examination. According to counsel, the identity of the Appellant was never in doubt. As to whether there was Armed Robbery or not, learned counsel submitted that the evidence of PW 1 – PW 4 as reflected on pages 27 -38 of the Record of Appeal proved that there was Armed Robbery. That the participation of the Appellant is proved by the testimony of PW 1 as reflected on page 28 of the Record of Appeal.
Responding to the issue of obtaining the confessional statement of the Appellant which was obtained in the absence of his counsel, learned Respondent’s counsel submitted that the issue of its voluntariness was not raised at the trial; as such same cannot form the basis of this Appeal and referred to the case of MUHAMMAD V THE STATE (2016) LPELR 42907 (CA). He further referred this Court to page 35 of the Record of Appeal and submitted that after the confessional statement was read to the Appellant, he signed it in Arabic.
As to proof beyond reasonable doubt, counsel submitted that the prosecution complied with this requirement by the evidence of PW 1- 4 and the tendering of exhibits A and A1 as shown at page 36 of the Record of Appeal. Counsel referred to page 51 of the record where the lower Court held:
“From the prosecution’s evidence, it is clear that PW 1 had the sum of N150,000 meant to be used to purchase onions. Although at the time of the incident, the said N150,000 was not in the hand of PW 1, but was in the room of the accused at Gawakuke Village. PW 1 was still in possession of the said money, as he has not given same to the accused; but has kept it with intention of using same to pay for the onions when they are bought. PW1 was therefore in possession of the said money”
Counsel further submitted that Section 296 (1) of the Penal Code provides: “In all robbery there is theft or extortion”.
According to counsel the lower Court in its judgment considered all the ingredients of the offence, viz a viz the evidence called by the prosecution and the documents tendered, as reflected on pages 45 to 51 of the record. He further submitted that from the evidence and testimony of witnesses called by the prosecution, the offence of Armed Robbery was proved beyond reasonable doubt against the accused; that the evidence of PW 1 and PW 2 corroborated each other and urged this Court to so hold. On the issue of the Appellant resting his case on that of the prosecution, counsel cited the case of AJIBADE V THE STATE (2012) LPELR 15531 (SC) and submitted that the legal effect is to leave the Court of trial free to accept the uncontradicted evidence of the prosecution in proof of the charge. On issue number three, counsel submitted that the lower Court was right in awarding compensation of N1 million to the nominal complainant and referred to Section 78 of the Penal Code in support of his assertions. According to counsel, the Section did not set any limit or benchmark as to the amount that a Court can award as compensation. He referred to the case of GANIYU MARTINS V COMMISSIONER OF POLICE (2012) LPELR 9821 (SC) and urged this honourable Court to so hold.
My lords, I think the most convenient place to start in deciding this Appeal is to state categorically that in criminal proceedings, the onus is always on the prosecution to always establish the guilt of the accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary ingredients of the charge/offence are proved by evidence:UCHE WILLIAMS V THE STATE (1992) 10 SCNJ 74 8 NWLR (Pt 261) 515; YONGO V COP (1992) 4 SCNJ 113, (1992) 8 NWLR (Pt 257) 36.
In this Appeal, learned counsel for the Appellant had argued that in convicting and sentencing the Appellant to 12 years imprisonment, the lower Court relied upon the purported confessional statement of the Appellant, and the uncorroborated evidence of PW 1 and PW 2. Let me approach the Record of Appeal and see the evidence the learned trial judge used to convict the Appellant. At pages 53 – 54 of the Record of Appeal the Court held as follows:
“This was the statement of the accused Exhibits A and A1. Learned accused counsel however, urged the Court not to rely on the statement of the accused and that before the Court can do so, the Court has to verify the truth of Exhibits A and A1 by subjecting them to the following tests:
1) Is there anything to show that Exhibits A and A1 are true?
2) Has it been corroborated?
3) Whether the facts stated in it are true and can be tested
4) Did the accused have the opportunity of committing the offence?
5) Is the confession possible?
6) Is it consistent with other facts ascertained or proved?”
It is to be noted that Exhibit A and A1 is a confessional statement. The Appellant did not challenge the voluntariness of the statement, he did not give evidence retracting the statementIt is the humble view of this Court that the statement of the accused has been subjected to verification in this judgment and therefore find that Exhibit A and A1 can be relied upon and I so hold….”
The grouse of the Appellant is that the confessional statement was not obtained and recorded in the presence of his counsel, that it was not signed by the Appellant and the I.P.O. (PW 4). It is trite that a confessional statement is proved to have been made voluntarily, when at the stage of tendering the confessional statement, there is no objection from the accused person or his counsel as to the voluntariness of the confessional statement. See the case of STEPHEN V STATE (2013) ALL FWLR Part 705 Page 224 at 229 Per RHODES VIVOUR JSC.
In the instant case, it is clear from the Record of Appeal at pages 35 – 36 that when the confessional statement was tendered there was no objection from the Appellant’s counsel that it was not voluntarily made. What counsel told the lower Court was that: “the statement was not made by the accused”. The denial by the Appellant in making the confessional statement does not make it inadmissible in law, it goes to the weight to attach to it. In the case of OJO V STATE (2018) LPELR 44699 ? SC the Apex Court held that:
“Exhibit A1 is the appellant’s extrajudicial confessional statement. Interestingly, he, subsequently, resiled from it, perhaps, in the vain hope that its admission as a voluntary statement could be vitiated. It is proper, therefore, to remind him now that a retraction or denial of a confessional statement (as he did) does not affect its admissibility. This has long been settled in the very old cases of R V. SAPELE and ANOR (1952) 2 FSC 74; R V. ITULE (1961) ALL NLR 462; the relatively old decisions of IKPASA v. THE STATE (1981) 9 SC 7; AKPAN V. STATE(1992) LPELR-381 (SC) 36; OSAKWE V. STATE (1994) 2 SCNJ 57; Nwangbomu v. The State (1994) 2 NWLR (pt327) 380; BATURE V. STATE (1994) 1 NWLR (pt 320) 267; ERAGUA & ORS. THE AG, Bendel (1994) LPELR-(SC) 30; IDOWU V. STATE (1998) 11 NWLR (pt 574) 354; as well as the more recent decisions of SILAS SULE V. STATE (2009) LPELR-3125 (SC) 28-30, G-B; FRN V. IWEKA (2011) LPELR 9350 (SC) 53; OSENI V. The STATE (2012) LPELR -7833 (SC) 22-23. In such a situation, the only thing the Court has to do is to consider the principles outlined in Case Law in determining whether or not to believe and act on such a confession which the accused person resiled from as enunciated in R. V. SKYES (1913) B C. A. R.233, 236; KANU V. THE KING (1952) 14 WACA 30; THE QUEEN V. OBIASA (1962) 1 All NLR 651; lL962l 1 SCNLR L37; OBOSI V. THE STATE (1965) NMLR 129.
Others include: ONOCHIE & ORS V. THE REPUBLIC (1966) NMLR 307; JAFIYA KOPA V. THE STATE (1971) 1 All NLR L50 DAWA V. THE STATE (1980) 8-11 SC 236; Ejinima v THE STATE (1991) 5 LRCN 1640, 1671; Arthur ONYEJEKWE V. THE STATE (1992) 4 SCNJ 1,9; (1992) 3 NWLR (Pt. 230) 444; AIGUOREGHIAN & ANOR V. THE STATE (2004) 3 NWLR (pt 860) 367; (2004)1 SCNJ 65; (2004) 1 SC (Pt.1) 65
These are: whether there is anything outside the confession which may vindicate its veracity; whether it is corroborated in any way; whether its contents, if tested, could be true; whether the defendant had the opportunity of committing the alleged offence; whether the confession is possible and the consistency of the said confession with other facts that have been established OSETOLA & ANOR v THE STATE (2012) LPELR-9348 (SC) 32-33.
The issue before this Court now is whether there is anything outside the confession which may vindicate its veracity; whether it is corroborated in any way; whether its contents, if tested could be true; whether the Appellant had the opportunity of committing the alleged offence; whether the confession is possible and the consistency of the said confession with other facts that have been established. PW 1 (the victim) in this case, clearly identified the Appellant as the one who invited him to his village to buy onions; that after spending the night with the Appellant, they proceeded early in the morning the following day to buy the onions. According to the witness, (as reflected at pages 27 – 28 of the Record of Appeal) the appellant used an axe and hit him with it on his head and also removed his right thumb with it, that the witness fainted. The record further shows that the witness left his money N150,000 in the room of the Appellant before they proceeded to buy the onions. It was the contention of the Appellant there was nothing to corroborate the confessional statement Exhibit A and A1. The Supreme Court, in OGUNBAYO V STATE (2007) 8 NWLR (Pt 1035) 157 held that corroboration is not a technical term or art, but means no more than evidence, tending to confirm, support and strengthen other evidence sought to be corroborated.
It was further held that it need not consist of direct evidence that the accused person committed the offence, nor need it amount to confirmation of the whole account given by the witness, provided that it corroborates the evidence in some respects material to the charge. In the instant case, PW 1 gave direct evidence against the Appellant. His evidence at pages 27 – 28 of the Record of Appeal reads:
“I know the accused person. His name is Musa. About three years ago, I went to Achida on a market day which was a Tuesday. I had gone to buy onions, that was when I met the accused. The accused told me that we can get the onions at his village called Gawakuke…so I followed the accused to their village where we spent the night Early the next morning, after praying the morning prayer, proceeded to go to buy the onions.on our way I was in front, and the accused was walking behind me. I realized that I could not hear the accused footsteps, so I turned round to see why. The next thing the accused attacked me with an axe and hit me on my head. When the accused attacked me the 2nd time with the axe, I tried to protect myself with my hand?..the axe removed my right hand thumb. I fell down and while I was down, the accused hit me again with the axe on my arm. I then fainted. Before we proceeded, I left my money N150,000 in the room of Musa in their village Gawakuke. I left the money behind because Musa told me we cannot pay the sellers of the onion in the bush; we have to come back to the villageto pay them.”
I have carefully gone through the record of proceedings of the lower Court and discovered that this piece of evidence was not contradicted during cross examination of PW1. I therefore agree with the findings of the lower Court that both the evidence of PW 1 and Exhibit A and A1, support the case of the prosecution that the Appellant robbed PW 1 of his money N150,000 after hitting him and making him unconscious with an axe. The lower Court held at page 51 of the record of Appeal thus:-
“From the prosecution evidence, it is clear that PW 1 has the sum of N150,000 meant to be used for purchase of onions. Although at the time of the incident, the said N150,000 was not in the hands of PW 1, but was in the room of the accused at Gawakuke village. PW 1 was still in possession of the said money, as he has not given same to the accused; but has kept it with the intention of using same to pay for the onions when they are bought. PW 1 was therefore in possession of the said money The evidence of PW 2 that the accused confessed that he took the N150,000 is corroborated by the statement of the accused at the police CID office (Exhibit A and A1) in which the accused stated that he told lies to the police; when he told them he gave the money to Mainasara and that he gave the money to one Shehu A. Shehu. It is clear from the foregoing that the prosecution was able to prove the offence of theft against the accused?.”
I agree with the lower Court that the evidence of PW 1, support, confirm and corroborate the confessional statement (exhibit A and A1). There is no doubt about this. On the issue that the Appellant did not sign the confessional statement, (pages 9-11) of the Record of Appeal which contains the confessional statement shows that the Appellant signed it in Arabic language. This issue is therefore resolved in favour of the Respondent and against the Appellant
On issue number two, that the prosecution have failed to prove the offence of Armed Robbery against the Appellant beyond reasonable doubt. It is trite that where an extra-judicial confession has been proved to have been voluntarily made and it is positive and unequivocal and amounts to an admission of guilt? it will suffice to ground a finding of guilt. In other words the confession of the Appellant alone in this case as is contained in Exhibit A and A1 even without corroboration is good enough to support a conviction as this Court is satisfied that the confession is true. Indeed nothing has happened to impugn on the integrity of the confessional statement of the Appellant. See the case of OLOYE V THE STATE (2018) LPELR 44775 SC where the Supreme Court Held that: “What is more, it has long been established in law that ordinarily, a free and voluntary confession of guilt by an accused person, whether judicial or extra judicial, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant a conviction even without any corroborative evidence. The most important thing is that the Court must be satisfied that the said confession is direct and positive and is properly proved, before acting on it without corroboration”.
In the instant case as if the effect of the confessional statement is not enough, then comes the damning corroborative evidence of PW 1 as reproduced above. From the confessional statement which is direct and positive and can sustain the charge not to talk of the corroborating evidence of PW 1, it is safe to say that the offence of Robbery contrary to Section 298 of the Penal Code been proved as required by law against the Appellant beyond reasonable doubt. I placed reliance on EDET OBASI V STATE (1965) NMLR 119; YESUFU V STATE (1976) 6 SC 167. The second issue is therefore resolved in favour of the Respondent and against the Appellant.
At the end of the prosecution’s case, Appellant’s Counsel at page 38 of the Record of Appeal decided to rest their case on that of the prosecution. At page 50 of the Record of Appeal, the lower Court held: “where the accused rests his case on the prosecution’s case by so doing the accused adopts the evidence led by the prosecution in its entirety. See AKWA V C.O.P. (2003) Part 811 Page 461.”
Appellant’s counsel however argued that the mere fact that the accused rested his case on that of the prosecution, does not absolve the prosecution of their duty to prove the guilt of the accused beyond reasonable doubt; as the burden never shifts. It should be noted that the Appellant did not call any witness or testify on his own behalf at the trial. He therefore, played a gamble which was obviously fatal to his case. See AGUGUA V THE STATE (2017) LPELR 42021.
The key word there is – gamble and the Appellant actually gambled, by remaining silent in the face of overwhelming evidence against him. It is true that he was not obliged to say anything at the trial because an Accused Person has the Constitutional Right to remain silent and leave the trial to the Prosecution to prove the charge alleged against him. In effect, his right to remain silent, even when arraigned for a criminal offence, is an inviolable one. But he was taking a huge risk; the law says that he is obliged to make his defence if his remaining silent will result in being convicted on the case made out against him. See OKORO v. THE STATE (1988) 5 NWLR (Pt. 94) 255 at 266 SC. and IGABELE V. THE STATE (2006) 6 NWLR (Pt. 975) 100 at 133 SC where the Apex Court held:
“The Appellant herein rested his case on that of the prosecution and was convicted of a lesser offence that was made out against him. His situation emphasizes the vital importance of defence counsel knowing when it is imperative that an accused person should testify, to explain particular aspects of the case, which he alone can explain. This is because resting the defence on the case of the prosecution will not present the trial Court with any explanation or an alternative story”. See further NWEDE V. THE STATE (1985) 3 NWLR (Pt.13) 444 SC. In IGABELE V. STATE (supra) the Supreme Court Per Ogbuagbu stated:
“It was for him to rebut the presumption that he committed the crime, at least, to cast a reasonable doubt on the prosecution’s case by preponderance of possibilities. But remarkably and significantly, his learned defence counsel, refused (as he was entitled to do as the master of his client’s case) to cross-examine some of the vital witnesses — He also refused the Appellant testifying and rested the case of the defence on that of the prosecution and thereby ‘drowning’ the Appellant or letting him ‘stew in his own juice’ so to speak/say.”
On the issue of the lower Court awarding compensation of N1 million to the victim as is reflected at page 57 of the record of Appeal; which learned Appellant’s counsel argued was erroneously made, having not properly established the expenses incurred in the course of prosecution; Section 78 0f the Penal Code Law (CAP. 89, LAWS OF NORTHERN NIGERIA 1963) provides:
“Any person who is convicted of an offence under this Penal Code may be adjudged to make compensation to any person injured by his offence and such compensation may be in addition to or in substitution for any other punishment.”
S.78 of the Penal Code therefore places no limit on the amount of compensation to the victim of the offence charged. The trial Court was therefore right in awarding the compensation. See ALHAJI GANIYU MARTINS V COMMISSIONER OF POLICE (2012) LPELR 9821 (SC). From the above clearly, the Appellant has not been able to shift the Court’s mind to his point of view as everything is weighed against his Appeal. This Appeal therefore lacks merit and is accordingly dismissed. I affirm the conviction and sentence of High Court of Sokoto in Suit No. SS/24c/2013 delivered on 11/2/2016.
HUSSEIN MUKHTAR, J.C.A.: I have had the advantage of previewing the judgment just rendered by my learned brother Abdullahi Mahmoud Bayero, JCA. I agree with the reasons therein and the conclusion that the appeal lacks substance. It is hereby dismissed.
I also subscribe the consequential orders made in the judgment.
AMINA AUDI WAMBAI, J.C.A.: I was privileged to read draft the judgment of my learned brother, Abdullahi M. Bayero, JCA. I agree with his reasoning and conclusion that there is no merit in the appeal.
The appellant’s learned counsel at the lower Court took a very risky and dangerous decision and stood on a very precarious position when he decided to rest the Appellant’s case on that of the prosecution. The implication of doing that is that the evidence of the prosecution which has not been controverted by the accused is deemed to have been accepted or admitted by the accused person, which evidence, the trial Court has a duty to act upon, if credible. See ADA V- THE STATE (2008) 13 NWLR (Pt 1103) 149.
The learned trial judge was therefore right to have relied on the evidence of PW1 corroborated by the voluntary confessional statement of the Appellant in returning a verdict of guilty on the Appellant and convicting and sentencing him accordingly. For the full reasons given in the lead the judgment, I too see no merit in this appeal. It is accordingly dismissed and the conviction and sentence of the Appellant as contained in the judgment of the lower Court delivered on 11th February, 2016 is hereby affirmed.
Appearances:
B.M. Muqaddam For Appellant(s)
Al-Mustapha (A.D.P.P. Min. of Justice, Sokoto)For Respondent(s)
