NASHEHU v. STATE
(2022)LCN/17174(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, May 13, 2022
CA/K/106/C/2020
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
MUSA NASHEHU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE STANDARD AND BURDEN OF PROOF IN CRIMINAL CASES
The law is firmly settled that in criminal trial the burden of proof rest on the prosecution to prove its case beyond reasonable doubt. Section 135(1) of the Evidence Act 2011 provides that if the commission of a crime by a party to any proceedings is directly in issue in any proceeding Civil or Criminal, it must be proved beyond reasonable doubt. See Section 36(5) of the 1999 Constitution (as amended) which provides that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. However proof beyond reasonable doubt is only required to attain a high degree of probability and not the degree of absolute certainty. In other words, it is not prove beyond all doubts or shadow of doubt. See Rabiu v. State (2005) 7 NWLR (Pt. 925) 491 and Esene v. State (2017) 8 NWLR (Pt. 1568) 337.
The prosecution can discharge its burden in three ways. These are through direct evidence of an eye witness, through confessional statement of the accused and through circumstantial evidence. See Akibu v. State (Supra) and F.R.N. v. Barminas (supra). PER TALBA, J.CA.
ELEMENTS TO ESTABLISH THE CRIMINAL OFFENCE OF ARMED ROBBERY
Both the appellant and the respondent are adidem on the three essential elements to be established in a charge of armed robbery. These are:
1. That there was a robbery or series of robberies
2. The robbery was an armed robbery and
3. The accused participated in the robbery. See Musa v. State (supra) FRN v. Dairo (supra) and Saminu v. State (supra).
The prosecution must lead cogent and positive evidence that leaves no room whatsoever for any other conclusion other than that it was the appellant who committed the offence. Where there is any slightest doubt on the case of the prosecution, the benefit of doubt must be resolved in favour of the accused person. In other words, the doubt must be genuine and reasonable arising from evidence before the Court. See The State v. Aibangbee (1988) 7 SC (Pt. 1) 96 at 132-133 and Mbenu v. The State (1988) 7 SC (Pt. 111) 71 at 87 Para 10-20. PER TALBA, J.CA.
THE POSITION OF LAW ON THE WEIGHT TO BE ATTACHED TO A RETRACTED CONFESSIONAL STATEMENT
In other words, the retraction of a confessional statement does not render the said statement inadmissible in evidence. The trial Court has a duty to admit the said confessional statement in evidence and then decide on the weight to attach to it at the end of the trial. In determining the weight to be attached to a retracted confessional statement the Court is expected to test its truthfulness and veracity by examining the said statement in the light of other credible available evidence. This is done by considering the following:
1. Whether there is anything outside it to show that it is true
2. Whether it is corroborated
3. Whether the accused had the opportunity of committing the offence
4. Whether the facts stated in it are true as far as can be tested
5. Whether the accused persons confession is possible
6. Whether the confession is consisted with the other facts ascertained and proved at the trial. See Osetola v. State (2012)17 NWLR (Pt. 1329) 251, Akpan v. State (2000) 12 NWLR (Pt. 682) 607 and Kareem v. FRN (2002) 8 NWLR (Pt. 770) 664. PER TALBA, J.CA.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Katsina State High Court delivered on 5th of October, 2017 in Suit No: KTH/27C/2016.
The appellant along with three other accused persons were arraigned before the High Court of Justice Katsina State for the offence of armed robbery contrary to Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act Cap R 11LFN 2004. They were found guilty and sentenced to 21 years imprisonment.
The case of the respondent against the appellant and the three other convicts was that on 5th of September, 2016 one Gambo Mallam Ya’u (PW1) was robbed by four men armed with sticks, machetes and horns while they were masked.
At the trial seven (7) witnesses testified for the respondent and several exhibits were tendered and admitted in evidence, including the statements of the appellant, Exhibits C, D, C1 and D1. The appellant and the three other co-accused persons testified in their own defence. After hearing the learned trial Judge found them guilty as charged, convicted them and sentenced them to 21 years imprisonment. Being aggrieved by the decision the appellant appealed to this Court vide the original notice of appeal filed on the 5th of March, 2020. On the 24th of February, 2020, the appellant was granted 14 days extension of time to appeal. The appellant filed an amended notice of appeal on 16th of June, 2021 and same was deemed on 27th of September, 2021. The amended notice of appeal contain two (2) grounds of appeal.
At the hearing of this appeal on the 14th of February, 2022, Olujoke Aliyu of counsel adopted the appellant’s brief of argument filed on 16th of June 2021 and deemed on 27th of September 2021. And the reply brief filed on 29th of October, 2021 and deemed on 2nd of November, 2021. Having adopted the two briefs the appellant’s counsel urged the Court to allow the appeal.
The respondent’s brief was settled by Omosanya Popoola and it was filed on 27th of September, 2021 and deemed on same date 27th September, 2021. After adopting the said brief the learned counsel urged the Court to dismiss the appeal.
The appellant distilled a sole issue for determination from the two grounds of appeal, thus:
“Whether having regard to the evidence led at the trial, there was reasonable doubt as to the alleged robbery and the appellant’s participation in the same.”
The respondent equally distilled a sole issue for determination thus:
“Having regard to the facts and circumstances of this case, whether the trial Court did not properly evaluate the material evidence adduced before it when it convicted and sentenced the appellant for the offence of armed robbery.”
However an appellate Court is not bound by the issues formulated by the appellant or the respondent. An appellate Court has the powers to reframe any issue formulated by the parties. Essentially an issue, for determination brings into clear focus and precision the main points involved in the appeal. In this regard I hereby reframe the issue to read thus:
“Whether in view of the totality of the evidence before the Court, the prosecution/respondent had proved the offence of armed robbery against the appellant beyond reasonable doubt.”
The appellant’s counsel submitted that an accused is presumed innocent until his guilt is proved beyond reasonable doubt. The prosecution has a burden to establish all the elements of the offence beyond reasonable doubt. The learned counsel relied on the Supreme Court decision in the case of State v. Sani (2018) 9 NWLR (Pt. 1624) 278 at 294 paras G – H where the essential elements for the offence of armed robbery were stated thus:
(a) that there was a robbery or series of robberies.
(b) that the robbery was carried out with offensive weapons; and
(c) that the accused person participated in the robbery.
The learned counsel submitted that the evidence of the prosecution is such that creates reasonable doubt as to the robbery and the participation of the appellant in the robbery. In convicting the appellant the lower Court relied on the retracted confessional statement of the appellant and other defendants. The lower Court sought for evidence outside the confessional statement to corroborate the confession. The lower Court relied on the exhibits tendered in Court by PW7 the exhibit keeper, which are the weapons allegedly found in the homes of the defendants and which were used in the commission of the crime. The lower Court held thus:
“It is on record that PW7 informed the Court how Exhibit A – F2 and M to M2 were recovered from the house and premises of the 1st accused person by means of a search warrant. The discovery of the items especially Exhibits A, C, E1, M1 and M2 go to (strengthen) the evidence of PW1 and PW2 and even the confessional statements of all the accused persons”.
In the light of the above finding that I strongly hold the view that the retraction of DW1 – DW2 are just an afterthought which will not avail them an escape route.” See page 72 of the record.
Learned counsel submitted that PW1 and PW2 testified that two men came into their home and robbed PW1. They also testified that they could not identify the said robbers. The identity of the said robbers is crucial to the fact that the defendants charged were the ones that carried out or participated in the said robbery. In the case of Ani v. State (2009) 16 NWLR (Pt. 1168) 443 at 460, the Supreme Court held that identification of an accused person in the commission of crime is a most serious exercise in the administration of Criminal Justice, as it creates the link between the accused person and the offence. Accordingly, a Court of law cannot speculate that a complainant might have or must have disclosed the person or persons who committed the offence when there is no evidence to draw such a conclusion.
Further in Ogbaga v. The State (2016) LPELR – 40950 (CA), the Court held:
“In a criminal charge, the act of the accused person must be tied to the commission of the crime. There must be a nexus between the accused person and the crime purportedly and indeed allegedly committed.”
The learned counsel submitted that neither the appellant nor any of the other defendants were arrested at the scene of the crime and the prosecution gave no evidence of where the appellant was arrested. In attempting to connect the appellant to the alleged robbery the prosecution relied on the alleged confessional statement and the exhibits tendered by PW7, the Exhibit Keeper which were allegedly used by the appellant and the other defendants during the robbery. The exhibits are:
1. 6 Sticks
2. 4 Knives
3. 2 Swords
4. 1 Cutlass with cure head
5. 1 Mask
6. 2 Turbans
7. 2 dark glasses
8. Some charms
9. 1 animal horn
10. Some amount of money (Cash) which was later released to the owner on bond.
The learned counsel submitted that the charge stated that the robbery was committed on the 5th of September, 2016. PW1 and PW2 testified that the armed robbery occurred on 5th of September, 2016. But PW7 the Exhibit Keeper who tendered the exhibits on 1st of February, 2017 he stated as follows:
“On 14/8/2016, one Inspector Adamu Musa attached to Anti – Robbery Section of SCID Katsina brought some exhibits in connection with this case against one Abdullahi Ibrahim and 3 Ors for registration. I registered them and gave them numbers, they are as follows …”
From the evidence of PW7 the exhibits were registered on 14/8/2016, it raises a question as to how exhibits that were allegedly used during an armed robbery on 5th September, 2016 could have been registered with the exhibit keeper in August, 2016 about three weeks before the alleged robbery. The exhibits were not connected to the robbery that occurred on 5th September, 2016 yet the trial Court found that the said exhibits strengthened the case of the prosecution and supported the confessional statements. The trial Court proceeded to convict the appellant on the basis of the same. There was no evidence outside the alleged confessional statement linking the appellant to the robbery. The evidence of PW1 and PW2 did not provide any linkage as both witnesses stated that they were unable to identify the assailants.
The learned counsel submitted that where an accused person retracts his confessional statement a trial Court must be wary of convicting on the same without some other compelling corroborative evidence and also subjecting the confessional statement to intense and detailed scrutiny. See Nwaebonyi v. State (1994) NWLR (Pt. 343) 138.
Appellants counsel submitted that the learned trial Judge failed to evaluate the evidence placed before it and thereby falling into error by placing so much weight on the Confessional Statement to convict the appellant. The learned counsel urged the Court to exercise its powers to re-evaluate the evidence. See Ali v. State (2015) LPELR 24711 (SC) and Abraham v. State (2017) LPELR 42873 (CA).
The respondent’s counsel submitted that the respondent led credible evidence to prove the offence of armed robbery against the appellant beyond reasonable doubt as required by Section 138 of the Evidence Act. And, the trial Court dispassionately and properly evaluated the evidence in arriving at the conviction and sentence of the appellant. He submitted that the requirement of proved is beyond reasonable doubt and not proof beyond every and all shadow of doubt. See Esene v. State (2017) 8 NWLR (Pt. 1568) 337, Rabiu v. State (2005) 7 NWLR (Pt. 925) 491 and Moses Jua v. The State (2010) 4 NWLR (Pt. 1184) 217.
Learned counsel submitted that there are three ways of proving a crime. These are:
1. Direct evidence
2. Confessional Statement made by the accused person and
3. Circumstantial evidence
See Akibu v. State (2019) 11 NWLR (Pt. 1588) 177.
The learned counsel concede to the elements of the offence of armed robbery earlier listed by the appellant’s counsel. And he further cited the following cases to buttress his submission. Musa v. State (2017) 5 NWLR (Pt. 1557) 43, FRN v. Barminas (supra), Dairo v. State (2018) 7 NWLR (Pt. 1619) 399, Saminu v. State (2019) 11 NWLR (Pt. 1683) 254 and Obade v. State (1991) 6 NWLR (Pt. 198) 430. The learned counsel submitted that the appellant is not contesting the first two elements of the offence of armed robbery to wit that there was a robbery or series of robberies and that the robbery was an armed robbery. The evidence of PW1 to PW7 and Exhibits A – M clearly reveals that there was a robbery and it was an armed robbery. The only question left to be answered is thus: Whether or not the appellant participated in the armed robbery for which he was charged. The learned counsel submitted that the respondent has also proven this fact beyond reasonable doubt through the confessional statement of the appellant and other exhibits. A free and voluntary confession of guilt by an accused person if it is direct positive and satisfactorily proved should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt as confession alone is sufficient without further corroboration to warrant a conviction. SeeIkpo v. State (2016) 10 NWLR (Pt. 1521) 501, Rex v. Ajayi Omokaro (1941) 7 WACA 146, Ogoala v. The State (1991) 2 NWLR (Pt. 175) 509, Queen v. Obiasa (1962) 2 SCNLR 402 and Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 433.
Learned counsel submitted that in Exhibits C, D, C1 and D1 the appellant confessed to having committed the crime of armed robbery together with the other accused persons. But at the point of tendering the said confessional statements the appellant did not object to the admissibility of same on ground of involuntariness rather the appellant retracted the confessional statement. And the evidence of PW4 clearly shows that there was full compliance with the provisions of the extant law when the extra-judicial statements were taken. And that the trial Court can convict on the confessional statement of the appellant whether (retracted or not) alone without any recourse to any other evidence. See Adisa v. State (2019) 3 NWLR (Pt. 1660) 488. Therefore, the trial Court’s decision to look outside the appellant’s confessional statement Exhibits C and D and C1 and D1 was made in the abundance of caution. The voluntariness or otherwise of the confessional statement of the appellant was not in issue at the trial Court. And where an accused person retracts his confessional statement at the point of tendering it in evidence, he will not be allowed to summersault at the point of giving evidence in chief that the confessional statement was made involuntarily. It is too late in the day as it is considered an afterthought. See Dairo v. State (supra) and FRN v. Dairo (2015) 6 NWLR (Pt. 1454) 141.
The learned counsel further submitted that in testing the truthfulness of a retracted confessional statement the Court would be expected to consider whether the confession was consistent with other facts which have been ascertained and proved at the trial no matter how slight. See State v. Ibrahim (2019) 9 NWLR (1676) 137 and Ameh v. State (2018) 12 NWLR (Pt.1632) 99. Learned counsel submitted that the combined evidential value of the appellant’s written confessional statement corroborated by the unchallenged and uncontradicted evidence of PW1 – PW7 was more than adequate in providing the perfect legal backing for the trial Court to rely on in convicting and sentencing the appellant. Learned counsel submitted that the evidence adduced by the entire respondent’s witnesses reveals that PW7 misstatement of the date the weapons were deposited with him as exhibit keeper is nothing more than a mere minor slip which did not affect the totality of his evidence or the reliability or evidential value of the exhibits tendered in evidence by PW7 as the weapons used in the armed robbery. And the appellant did not cross-examine PW7 on this supposed crucial point. The misstatement of the date of receipt of the exhibits by PW7 becomes insignificant and is of no moment. The position of the law is that an error in stating the date in a criminal matter is an immaterial or inconsequential error which has no effect on the trial or on the judgment of the trial Court. See State v. Ahmed (2020) 14 NWLR (Pt. 1743) 1. And Sagiru Attahiru v. The State (2020) LPELR 51092 (CA). Relying on the case of Adeleke v. State (2014) All FWLR (Pt. 722) 1652 and Asimi v. State (2016) 12 NWLR (Pt. 1527) 414, the learned counsel submitted that the trial Court was right to rely on the confessional statement of other co-accused person as corroborative evidence of each other. See also State v. Buhari (2019) 10 NWLR (Pt. 1681) 583. The respondent counsel submitted that without conceding that there are few contradictions and inconsistencies, such contradictions must be material and fundamental. They must create doubt in the mind of the Court to such a degree that the Court believes that the doubt must be resolved in favour of the accused. See Awopejo v. State (2001) 92 LRCN 3187, Ogoala v. State (1991) 2 NWLR (Pt. 175) 509, Nwosisi v. State (1976) 6 SC 109, Ayo Gabriel v. State (1989) 5 NWLR (Pt. 122) 457 and Princent & Anor. v. State (2002) 12 SC (Pt. 1) 137. Learned counsel submitted that the law is that the burden is on the party who alleges contradictions to discharge the burden by showing quite glaringly that the inconsistency is material in order to succeed. See Brilla v. FRN (2018) 16 NWLR (Pt. 1645) 305. Learned counsel submitted that the appellant failed to discharge that burden having argued that the number of armed robbers that PW1 and PW2 testified that they saw whether 2 or 4. The name of the nominal complaint whether Gambo or Gambo Mallam Yau. Where the appellant lives, whether Dankama or Dankaba village. How much money was taken the nature of the weapons used by the robbers. The name Musa Nashehu which was provided by the appellant in Court and Musa Shaaibu Nashehu written on the appellant’s confessional statement. All never detracted from the fact that the Appellant did participated in the armed robbery.
The appellant’s reply brief is a mere re-argument of the appellants brief. It does not conform with Order 19 Rule 5(1) of the Court of Appeal Rules 2021. A reply brief is or should be a response to any new issue or point raised in the respondent’s brief. It is not a repair kit and should not be a reargument or a repetition of the appellant’s brief. See N.P.A v. Aminu Ibrahim & Co., (2018) 12 NWLR (Pt. 1632) 62 (SC). Accordingly therefore the reply brief is discountenanced.
The law is firmly settled that in criminal trial the burden of proof rest on the prosecution to prove its case beyond reasonable doubt. Section 135(1) of the Evidence Act 2011 provides that if the commission of a crime by a party to any proceedings is directly in issue in any proceeding Civil or Criminal, it must be proved beyond reasonable doubt. See Section 36(5) of the 1999 Constitution (as amended) which provides that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. However proof beyond reasonable doubt is only required to attain a high degree of probability and not the degree of absolute certainty. In other words, it is not prove beyond all doubts or shadow of doubt. See Rabiu v. State (2005) 7 NWLR (Pt. 925) 491 and Esene v. State (2017) 8 NWLR (Pt. 1568) 337.
The prosecution can discharge its burden in three ways. These are through direct evidence of an eye witness, through confessional statement of the accused and through circumstantial evidence. See Akibu v. State (Supra) and F.R.N. v. Barminas (supra).
Both the appellant and the respondent are adidem on the three essential elements to be established in a charge of armed robbery. These are:
1. That there was a robbery or series of robberies
2. The robbery was an armed robbery and
3. The accused participated in the robbery. See Musa v. State (supra) FRN v. Dairo (supra) and Saminu v. State (supra).
The prosecution must lead cogent and positive evidence that leaves no room whatsoever for any other conclusion other than that it was the appellant who committed the offence. Where there is any slightest doubt on the case of the prosecution, the benefit of doubt must be resolved in favour of the accused person. In other words, the doubt must be genuine and reasonable arising from evidence before the Court. See The State v. Aibangbee (1988) 7 SC (Pt. 1) 96 at 132-133 and Mbenu v. The State (1988) 7 SC (Pt. 111) 71 at 87 Para 10-20.
In this instant case, seven witnesses testified for the prosecution, PW1 to PW7. And several exhibits were tendered and admitted in evidence as Exhibits A-M. These includes the extra-judicial statement of the appellant with other co-accused persons and the weapons used to commit the robbery. While reviewing the evidence before the Court, the learned trial judge stated thus:
“PW1 was the alleged victim, one Gambo Mallam Ya’u aged 32 years lives at Dankaba in Kaita Local Government Area. A livestock trader. He told the Court that on 5th September, 2016 which was a Monday around 3:00am. He was suddenly woken up from his sleep by a sound of beating with a stick on his leg and he noticed two (2) people standing in front of him, their faces covered with turbans. They were holding matchet sticks, and horns and torch light. He was engulfed with fear. It was then the Robbers told him that. They were sent to kill him. They requested for money which he gave them N203,000.00 and 25 pounds of sefa which he had kept in his trouser. Gambo said he was pursued with a knife when he attempted to pursue them…. Under cross-examination, PW1 replied that he could not challenge the robbers because it was dark and they were carrying dangerous weapons……
The wife of PW1 was PW2 she affirmed and informed the Court that it was around 3:00am when she was coming out of the toilet she notice two (2) people who covered their faces with mask. They hit her husband (PW1) with a stick while he was sleeping and told him that they were send to kill him and when he replied it was o.k (sic) they asked PW1 if he was not afraid of death and that the Armed Robbers later demanded for money which he brought out and gave them.”
From the evidence of PW1 and PW2, it has been established that there was a robbery on the 5th of September, 2016 at Dankaba and the robbery was an armed robbery.
The next crucial question is whether the appellant participated in the robbery? PW1 and PW2 who were victims of the robbery they both stated in their evidence that the robbers covered their face with turbans and mask, and that it was dark. During cross-examination, they both said they could not identify the robbers. Therefore, the issue of identification becomes a sine qua non. But in this instant case, although identification parade is desirable, it is unnecessary in this circumstance. Reason being that the victims of the robbery stated clearly that they could not identify the robbers because it was dark and the robbers covered their face. Therefore, unless the accused persons were promptly arrested at the scene of the crime before they have the chance to escape, identification of the accused persons taking part in the crime becomes very difficult. And that is not the case in this situation that is to say that the appellant and other co-accused persons were not arrested at the scene of the crime.
As a matter of fact, there is no evidence led as to how, when and where the appellant was arrested. Where an accused person is not properly and clearly identified as the one who actually took part in the commission of the crime but merely arrested by the police on suspicion and charged to Court, there is doubt as to the guilt of the accused person.
However, the trial Court relied on the retracted confessional statement of the appellant and the weapons used in committing the robbery to ground a conviction. Further reviewing the evidence the learned trial judge held thus;
“… Both recorded statements were identified by PW4 and were sought to be tendered in evidence. The move was objected by the defence counsel on the ground that the 3rd accused person has made a retracted of his confessional statement. The Court overruled the reason for the objection and admitted the statement in evidence as Exhibits C and D and C1 and D1 for the additional statements both in Hausa and English versions…”
The learned trial judge rightly admitted the confessional statements in evidence. It is settled law that a voluntary confession which is admissible against an accused person does not become inadmissible merely because the accused person who made it has retracted. See Ikemson v. The State (1989) 6 SC (Pt. 1) 114 at 130-131. In other words, the retraction of a confessional statement does not render the said statement inadmissible in evidence. The trial Court has a duty to admit the said confessional statement in evidence and then decide on the weight to attach to it at the end of the trial. In determining the weight to be attached to a retracted confessional statement the Court is expected to test its truthfulness and veracity by examining the said statement in the light of other credible available evidence. This is done by considering the following:
1. Whether there is anything outside it to show that it is true
2. Whether it is corroborated
3. Whether the accused had the opportunity of committing the offence
4. Whether the facts stated in it are true as far as can be tested
5. Whether the accused persons confession is possible
6. Whether the confession is consisted with the other facts ascertained and proved at the trial. See Osetola v. State (2012)17 NWLR (Pt. 1329) 251, Akpan v. State (2000) 12 NWLR (Pt. 682) 607 and Kareem v. FRN (2002) 8 NWLR (Pt. 770) 664.
Before a conviction can properly be based on such a retracted confession, there should be some corroborative evidence outside the confession which would make it probable that the confession was true. See Okoh v. State (2014) 57 (Pt. 2) NSCQR 732 and Bassey v. State (1993) 7 NWLR (Pt. 306) 409. In this instant case the learned trial judge relied on the evidence of PW7 along with the exhibits tendered through him to strengthen the case of the prosecution with regards to the confessional statement. PW7 testified in Court and he stated thus:
“My name is Insp Idris Abdullahi No. 130811 attached to SCID Katsina as exhibit Keeper. I am 46 years old. I have been an exhibit keeper for 2 years now, I know why I am in Court. On the 14/8/2016 one Insp Adamu Musa attached to Anti Robbery section of SCID Katsina brought some exhibit in connection with this case against one Abdullahi Ibrahim and 3 Ors for registration. I registered them and gave them number, they are as follows:
1. 6 sticks
2. 4 Knives
3. 2 sword
4. 1 cutlass with curve head
5. 1 mask
6. 2 turbans
7. 2 dark glasses
8. some charms
9. 1 animal horn
10. some amount of money (cash) which was later released to the owner on bond.
All the exhibits were tied together and marked as 223/2016 except the motorcycle which was kept outside the Court. All the exhibits is with the prosecution counsel.”
It is crystal clear that from the evidence of PW7, the exhibits were brought to the SCID on 14/8/2016 by Insp Adamu Musa and they were registered on that date. It is instructive to note that the alleged robbery took place on the 5th September, 2016 as per the evidence of PW1 and PW2. And Insp Adamu Musa who took the exhibits to PW7, is the PW4. In his evidence PW4 Insp Adamu Musa stated thus:
“… yes I know why I am in Court. I investigate cases and compile the case diaries. Yes I know the accused persons. I can recall on 7/9/2016, a case of criminal conspiracy and armed robbery was referred from Keita divisional police station to the state CID for investigation and I happened to be one of the IPOs. Our team is 4 in number I am the 1st one there is Abey Sunday Insp (3) Armaya’u Magaji PW3 and (4) CPL Yahaya Abdullahi.”
I am on the same page with the submission of the learned respondent counsel that on the evidence of PW7 the exhibits were registered on 14/8/2016. This raises a critical question as to how exhibits that were allegedly used during an armed robbery operation on 5th September, 2016 could have been registered with an exhibit keeper in August 2016 about three weeks before the alleged robbery.
In his own response to this critical question, the respondent’s counsel submitted that a calm perusal of the entire evidence adduced by the respondent’s witnesses will reveal that PW7 misstatement of the date the weapons were deposited with him as exhibits keeper is nothing more than a mere minor slip, which did not affect the totality of his evidence and indeed the reliability or evidential value of the exhibits including the exhibits tendered in evidence by PW7 as the weapons used in the armed robbery. It is trite law that however well presented arguments by counsel cannot take the place of evidence. It is also trite that Courts of law do not act on speculation but on proved facts. See NNPC v. FAMFA Oil Ltd (2003) FWLR (Pt. 154) 812, Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637, Nigeria Arab Bank Ltd v. Felly Keme (Nig) Ltd (1995) 6 NWLR (Pt. 387)100 Bayo v. Njidda (2004) 8 NWLR (Pt. 876) 636.
The arguments of the respondent’s counsel is not borne from the records. The learned trial judge did not make such a finding before placing reliance on the exhibits. The effect is that there was no evidence to corroborate the retracted confessional statement. In the recent case of Gbadamosi v. The State (2019) 4 NWLR (Pt. 1661) 29, the Supreme Court held thus:
“In the case of an accused person, the Court will take the view that the accused has retracted from the confession and apply the veracity test to see if the confession is true and where it comes to the conclusion that the confession is true and there is evidence to corroborate the confession, the Court could proceed to convict the accused based on the confession.”
In line with the decision of the Apex Court, I hold that where an accused person retracts his confession, the trial Court has a duty to apply the veracity test to ensure that the confession is true and to also look for corroborative evidence before convicting the accused person. See Adamu Saliu v. The State (2014) 12 NWLR (Pt. 1420) 65 at 84-85, Nwaebonyi v. The State (1994) 4 NWLR (Pt. 343) 138 at 157, Adisa v. State (2019) 3 NWLR (Pt. 1660) 488, Karimyu Sunday v. The State (2017) LPELR-42259 (SC).
In this instant case, the learned trial judge should have exercised caution in convicting the appellant based on the confessional statement without applying the veracity test. This is because the appellant in his evidence in chief, he stated thus:
“I told them that I just came into the town, they searched me and I was beaten, two of my handset, drivers license and the sum of N4000 were all seized from me. After my denial they took me to Kaita DPS where I was beaten again and tear gas was sprayed on me which made me fall asleep.. They woke me up around 12am and took me upstairs and asked me whether I was once killed and came to live. I said no. They showed me a dead person laying on the floor who they told me was accused of committing a similar offence. They brought out metal and hit me, they asked me to tell them what I know regarding the offence but I insisted I know nothing about it. They asked me to go back to the cell but could not walk until one of them robbed tiger on my legs and helped took me down stairs..”
See pages 33-34 of the record. In confirmation of what the appellant told the Court that he was beaten, PW1 during examination in chief, he told the Court that:
“… later I heard the news that the people who went and robbed me had been arrested. On hearing this, I immediately rushed to the police station and I met them being beaten.” See page 11 of the record.
This pieces of evidence should have agitated the mind of the learned trial judge to subject the confessional statement to veracity test and look for corroborative evidence outside the confession. The learned trial judge was in error to have convicted the appellant on the retracted confessional statements Exhibits C, C1, D and D1 without applying the veracity test and without any corroborative evidence except the weapons which were registered three weeks before the commission of the offence as exhibits used in the armed robbery. Consequently, I resolve the sole issue in favour of the appellant.
The appeal is indeed meritorious and it is allowed. Therefore, the conviction and sentence of the appellant for the offence of armed robbery contrary to and punishable under Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria 2004, in Charge No: KTH/27C/2016 are hereby set aside. Accordingly, I enter a verdict of acquittal and discharge for the Appellant Musa Nashehu.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, Abubakar Mahmud Talba, JCA. I agree with the reasoning and conclusion reached in the judgment. I also agree that the appeal is meritorious and ought to be allowed. I abide with the consequential orders.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Abubakar Mahmud Talba, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
Olugoke Aliu, Esq. For Appellant(s)
Omosanya Popoola, Esq. For Respondent(s)
