RARA v. STATE
(2020)LCN/15463(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Friday, December 04, 2020
CA/S/111C/2020
RATIO
CONFESSIONAL STATEMENT: WHETHER A RETRACTION OF A CONFESSIONAL STATEMENT RENDERS THE SAME INADMISSIBLE
However, a mere retraction of a confessional statement does not affect its admissibility in evidence. Rather the Court is to decide at the end of the trial the weight to attach to such as statement. PER ABUBAKAR MAHMUD TALBA, J.C.A.
DUTY OF COURT: DETERMINING THE ADMISSIBILITY OF A CONFESSION
In any event, it is within the province of the trial Judge to determine the admissibility of a confession upon proof by the prosecution that the statement was free and voluntary and having admitted the statements as in the instant case where there has been a retraction by the accused. It is desirable for the trial judge to find some corroboration in the evidence tending to show that the statement of the accused having regard to the circumstances of the case is true. See OKAFOR vs. THE STATE (1965) NMLR 20. PER FREDERICK OZIAKPONO OHO, J.C.A.
CONFESSIONAL STATEMENT: PROOF OF THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT
The settled position of the law, however is that a retraction of a confession does not ipso facto render the confession inadmissible. See the old case of R. vs. JOHN AGAGARIGA ITULE (1961) 1 ANLR 402 (FSC) where the Supreme Court per BRETT, Ag CJF held thus;
“A confession does not become inadmissible merely because the accused person denies having made it and in this respect a confession contained in a statement made to the Police by a person under arrest is not to be treated different from any other confession. The fact that the Appellant took the earliest opportunity to deny having made the statement may lend weight to his denial. See R vs. SAPELE & ANOR (1952) 2 FSC 74 but it is not in itself a reason for ignoring the statement.”
It would be further recalled that the Appellant took the earliest opportunity when the statement was offered in evidence to deny having made it. But the position remains in law, that a mere denial without more, even at the earliest opportunity, cannot, on the bare facts of the case, lend any iota of weight to the denial. Apart from the fact that the denial is a bare statement bereft of any supporting facts, it is by and large, standing only on the ipsi dexit of the Appellant. To make matters rather worse and as revealed by the printed records in this case, the said statements were not even challenged on grounds of involuntariness or any other at all.
Arising from this position, in which the voluntariness or otherwise of the statements were neither raised nor challenged at the trial, this Court therefore finds and holds that the prosecution proved affirmatively that Exhibits A and A1, and B and B1 were voluntary confessional statements of the Appellant. Regardless of this position, the usual thing in all criminal trials is that the burden of proving affirmatively beyond doubt that the confession was made voluntarily is always on the prosecution, which this prosecution succeeded in doing as expected in this case. See the cases of JOSHUA ADEKANBI vs. AG WESTERN NIGERIA (1961) All NLR 47; R vs. MATON PRIESTLY (1966) 50 CR APP. R 183 at 188; ISIAKA AUTA vs. THE STATE (1975) NNLR 60 at 65 SC on the issue. PER FREDERICK OZIAKPONO OHO, J.C.A.
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
MUSTAPHA ADAMU RARA APPELANT(S)
And
THE STATE RESPONDENT(S)
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Sokoto State, Sokoto Judicial Division in Charge No: SS/23C/2017 delivered by M. S. SIFAWA, J (as he then was, but now HCJ-Sokoto) on the 11th June, 2018. In the judgment, the learned trial Judge found the Appellant guilty of the offence of Robbery and sentenced him to 21 years term of imprisonment. At the trial Court, the Appellant was charged as the 1st accused person and also referred to as DW1. He was charged with a one count charge of Robbery, punishable with 21 years term of imprisonment contrary to Section 1(1) of the Robbery and Fire Arms (Special Provisions) Act, Cap. R II Laws of the Federation of Nigeria 2004.
The particulars of the offence read as follows:
“That you Mustapha Adamu Rara (M), on or about the 7th day of April, 2016 at about 2000 hours at Fadama site at the outskirt of Rabah Town, in Rabah Local Government Area within the Sokoto Judicial Division, did commit the offence of Robbery, in that after you armed yourself with a knife, you hired the services of one Yusuf Lawali, a commercial motorcyclist with Registration No. Lagos MUS-358-QH, along Ahmadu Bello Way Emir Yahaya Round about Sokoto, to carry you to Rabah to and fro, on reaching Rabah Fadama site, you brought out the knife, attacked him, inflicted serious injuries all over his body and drove away with his motorcycle. WHILE TRYING TO escape, vigilante members within the area pursued and arrested you. You thereby committed an offence punishable under Section 1(1) of the Robbery and Fire Arms (Special Provision) Act Cap R11 Laws of the Federation of Nigeria 2004.”
At the commencement of trial at the Court below, the single count charge was read to the Appellant and who pleaded not guilty to the charge. Thereafter and the prosecution opened its case and called a total number of six (6) witnesses (PW1 – PW6). Seven (7) were exhibits were also tendered. The accused person testified in his own defence as DW1 and called no witnesses. At the close of the case for the defence, Counsel to the parties filed written addresses; this can be found at pages 15 – 26 of the record of appeal. The Court below delivered its judgment on 11th June, 2018 and found the Appellant guilty of the offence of Robbery. The Appellant was thereafter, sentenced to a term of 21 years of imprisonment. The judgment of the Court can be found at pages 53-78 of the record of appeal.
Aggrieved by the decision of the Court below, the Appellant has appealed against his conviction and sentence to this Court. A copy of the Notice of appeal dated 8th August, 2018 can be found at pages 80-84 of the record of appeal. A total of five (5) grounds of Appeal were filed by the Appellant. Of these grounds, a total of three (3) issues were nominated for the determination of this Appeal by the Appellant.
ISSUES FOR DETERMINATION
1. Whether the Appellant was denied a fair hearing by the lower Court and whether the lower Court judgment against the appellant occasioned a travesty of justice by the said denial of fair hearing? (Ground 2)
2. Whether the Learned Trial Court was right in admitting the confessional statement of the Appellant despite the fact that it was involuntarily procured? (Grounds 1)
3. Whether the Prosecution proved the offence of Robbery beyond reasonable doubt? (Grounds 3, 4 & 5)
On the part of the Respondent, the three (3) issues nominated by the Appellant were adopted and it is in respect of these issues that this Court was extensively addressed by learned Counsel to the parties, each citing a plethora of decided authorities.
SUBMISSIONS OF COUNSEL:
APPELLANT’S COUNSEL:
ISSUE ONE:
Whether the Appellant was denied a fair hearing by the lower Court and whether the lower Court judgment against the appellant occasioned a travesty of justice by the said denial of fair hearing? (Ground 2)
In arguing this issue, learned Appellant’s Counsel drew attention to the fact that at the inception of this matter, the Appellant repeatedly stated that he did not commit the offence for which he was being charged and that he made a statement at the point of his arrest by the police that attested to this fact. The contention of Counsel is that that statement was neither made part of the proof of evidence, nor was it put before the Court in evidence. He further contended that even when this fact came to the notice of the Trial Judge his reaction was perfunctory.
The submission of Counsel is that had the first statement of the Appellant been available in evidence and used as a basis to cross examine the witnesses, it would have led to a different outcome and probably the acquittal of the Appellant. He argued that the absence of that statement from the proof of evidence occasioned a travesty against the Appellant as he was denied of his right to personal liberty as guaranteed by Section 35 of the Constitution of the Federal Republic of Nigeria.
In addition, Counsel argued that the procedure and conduct of the prosecution in not putting the first statement of the Appellant in the proof of evidence offends the right to fair hearing guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). According to learned Counsel, it is trite law that a right of fair hearing is co-terminus with a right of fair trial and that the obligation of the prosecution is to ensure that the accused is provided with all materials for his defence. Counsel added that the prosecution is also under a duty to provide all material evidence whether in its support or otherwise and cited the case of EBELE OKOYE vs. COP (2015) LPELR-24675(SC), in support.
It was further contended by Counsel that the provisions of Section 36 of the Constitution are mandatory and that any breach of its provisions would lead to a denial of the right to fair hearing; the consequences of which is a breach of fair hearing and a vitiation of the entire proceedings, rendering of same null and void ab initio. See T. M. ORUGBO & ANOR vs. BULARA UNA & ORS (2002) LPELR-2778 (SC), where NIKI TOBI, JSC had this to say on the subject;
“The fair hearing principle entrenched in the Constitution is so fundamental in the judicial process or the administration of justice that breach of it will vitiate or nullify the whole proceedings, and a party cannot be heard to say that the proceedings were properly conducted and should be saved because of such improper conduction. Once an appellate Court comes to the conclusion that there is a breach of the principle of fair hearing, the proceedings cannot be salvaged as they are null and void ab initio. After all, fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision. Accordingly, where a Court arrives at a correct decision in breach of the principle of fair hearing, an appellate Court will throw out the correct decision in favour of the breach of fair hearing.”
See also FRN vs. AKUBUEZE (2010) 17 NWLR (PT. 1223) 525 AT 537 PARAS. E; OGUNSANYA vs. STATE (2010) 14 NWLR (PT. 1213) 349.
It was further argued by learned Counsel that the procedure inherent in the lower Court’s handling of this matter is against the grain of our jurisprudence particularly Section 167(d) of the Evidence Act 2011. Counsel drew attention to the fact that in the case of OGUDO vs. STATE (2011) 18 NWLR (PT. 1278) P. 1, the Supreme Court was faced with a similar situation where evidence which would have been favourable to the accused person was not tendered at the trial by the prosecution and that the Court held as follows at pages 31, 33 of the report per FABIYI, JSC as follows:
“The appellant made a statement at Birnin Gwari Police Station, Buruku. That statement was never tendered in Court. The prosecution is expected to tender all the statements made by the accused person to the Police whether at the time of his arrest or subsequently. In this case, the appellant made a statement at Birnin Gwari Police Station (the first station he was taken to after he was arrested). The prosecution did not tender the statement at the trial. To deprive the appellant standing trial for an offence which carries the death penalty the use of his statement made to the Police to my mind renders the trial unfair…
Furthermore, failure to call vital witnesses raises the presumption under Section 149(d) of the Evidence Act that had he been called the evidence he would have led would have been unfavourable to the prosecution.”
(Underlined, that of Counsel for emphasis mine)
The attention of this Court was further drawn to page 33 of the report, where His Lordship, RHODES-VIVOUR, JSC stated further as follows that:
“When the police deliberately withholds vital evidence that can swing the case one way or the other, then there is more to it than meets the eye. Some hidden agenda is at play. Withholding evidence in the case was deliberate but unfortunately for the police with unexpected results.
In sum, this appeal is allowed. The judgment of the trial Court and the confirmation of it by the Court of Appeal are set aside and its place I enter an acquittal and discharge. The appellant is acquitted and discharged.”
(Underlined, that of Counsel for emphasis)
The contention of learned Counsel here is that it is not an answer to the fatal failure to tender this evidence, that the failure to do so would not make any difference in the finding of the lower Court. See the observation of the apex Court in OGUDO’S CASE (Supra) where FABIYI, JSC, at page 53, said:
The appellant said he made a statement at Birnin Gwari Police Station. The same was not tendered during the trial. The prosecution has a duty to tender any statement made by an accused person during the investigation of the offence with which he was charged whether or not it is in his favour. See: Majema v. The State (1967) NMLR 56. This must be so in order to avoid the invocation of the provision of Section 149(1)(d) of the Evidence Act against the prosecution which failed to tender the vital statement. The Court below in respect of the un-tendered statement of has this to say at page 174 of the record of appeal:
“In the circumstances, failure to tender the statement made at Buruku Police Station, desirable as it was, would not have made any difference in the finding of the High Court.”
The above view, with due deference, flies in the face of my views as stated above. The statement must be tendered in the first instance before one can surmise the difference it will have on the finding of the trial Court.”
(Underline, that of Counsel for emphasis)
It is further submitted by learned Counsel that the fatal withholding of the evidence of the Appellant’s statement made to prove his innocence by the prosecution amounted to withholding evidence (under Section 167(d) of the Evidence Act) which would have been unfavourable to the prosecution and that this further led to an unfair trial and a violation of the fundamental right of the Appellant to a fair hearing guaranteed under the Constitution. Counsel urged this Court to set aside the judgment of the trial Court and in its place, an order discharging and acquitting the Appellant be made by this Court. See the case of PEOPLE OF LAGOS STATE vs. MOHAMMED UMARU (2014) LPELR -22466 (SC). Against the backdrop of this position, Counsel urged this Court to hold that there has been a breach of the fair hearing of the Appellant and accordingly declare the proceedings at the Court below, null and void and discharge and acquit the Appellant.
ISSUE TWO:
Whether the Learned Trial Court was right in admitting the confessional statement of the Appellant despite the fact that it was involuntarily procured? (Grounds 1)
In arguing this issue, learned Counsel submitted that the learned trial Judge erred in his judgment when he accepted and relied on the alleged confessional statements of the Appellant in convicting him for a number of reasons. One of these is that at pages 11 & 15 of the record of appeal, the Appellant objected to the admissibility of his confessional statement in Exhibits A, A1 and B, B1 on the ground that he was not the maker of the statement as the said confessional statement did not reflect the true account of what happened and his thumbprint was involuntarily procured. The argument of learned Counsel is that following the Appellant’s denial of the allegation in his first confessional statement of 7/04/2016, which was withheld by the prosecution, Exhibits A, A1 and B, B1 was involuntarily procured in the bid to incriminate the Appellant unjustly. Counsel was to also submit that from the issue of voluntariness arising from Exhibit A, A1 and B, B1 that the Learned Trial Judge was wrong not to have conducted a trial within trial, thus suggesting that the probative value of the Appellant’s statements is negligible and that a Court should not base its verdict on it.
Against this position, Counsel contended that where an accused person denies being the maker of a confession in a written statement but adds that in any event the signature to the confessional statement was not voluntary in that his signature or thumb print as it was obtained by an inducement, threat or promise having reference to the charge against him and proceeding from a person of authority, the holding of a trial within a trial to determine the admissibility of the statement will be necessary. Counsel cited the case of UCHE OBIDIOZO & ORS vs. THE STATE (1987) LPELR-2170(SC).
It was thereafter argued by Counsel that the learned trial judge, regrettably, did not heed the above judicial admonition when he did not consider or determine the issue of the admissibility of Exhibits A, A1 and B, B1 on the ground of involuntariness and ordered a trial within trial before relying on the exhibits in question. He argued that had the Court below done that, that it would have led to the acquittal of the Appellant, but rather that the Appellant was convicted on the basis of unreliable evidence which obviously has resulted in a miscarriage of justice to the Appellant. In conclusion, Counsel urged this Court to find in favour of the Appellant on this issue as the Trial Court was in error to have entered in evidence, the Confessional statements, which were not freely procured from the Appellant.
ISSUE THREE:
Whether the prosecution proved the offence of robbery beyond reasonable doubt? (Grounds 3, 4 & 5)
The submission of learned Counsel in this issue is that the prosecution failed to prove the offence of Robbery against the Appellant as the ingredients of the offence were not proved beyond reasonable doubt against the Appellant. According to Counsel, the burden of proving all the elements of an offence rest squarely on the prosecution at all times and that the standard of proof required is one of proof beyond reasonable doubt. He contended however, that the burden of proof in a criminal case rests solely on the prosecution and that it is static as it never shifts, even where the accused in his statement to the police admitted committing the offence. Counsel cited the case of AWOSIKA vs. THE STATE (2010) 9 NWLR (PT. 1198) 149. Counsel also referred to Section 135 (1), (2) & (3) of the Evidence Act, 2011 which he said contains provisions as to the standard of proof and the burden of proof in criminal proceedings.
It was further contended that in any circumstance where there is established a reasonable doubt, the Court is enjoined by law to upturn the conviction and in its stead enter a judgment of discharge and acquittal. See ALONGE vs. INSPECTOR GENERAL OF POLICE (1959) SCNLR 576. Counsel argued that this position of the law is premised on the presumption of innocence provided by the Constitution in Section 36(5). See USO vs. C.O.P (1972) NSCC, 631; ANI & ANOR vs. THE STATE (2009) LPELR – 488(SC) 14 – 15, D – E.
As it relates to the ingredients of the offence of robbery, which the Appellant was charged with, Counsel submitted that the following ingredients are rife;
1. There must be an act that amounts to stealing;
2. Items were stolen by the use of threat or threat to use violence; and
3. The appellant took part in the robbery.
See SAHEED AROWOLO vs. THE STATE (2009) LPELR 4913 CA, BOZIN vs. THE STATE (1985) 2 NWLR (PT. 8) 465.
Learned Counsel further contended that the failure of the prosecution to prove any of these ingredients is fatal to its case and that the case must fail. In putting it differently, Counsel submitted that it is the prosecution’s proof of these ingredients beyond reasonable doubt that would warrant a guilty verdict from the Court of trial. See BOZIN vs. THE STATE (1985) 7 NWLR (PT. 8) 465 @ 471; ONYEDIKACHI OSUAGWU vs. THE STATE (2016) LPELR 40836 (SC). Against the backdrop of the foregoing, Counsel submitted on behalf of the Appellant, that the ingredients of the offence of robbery were not proved beyond reasonable doubt. It is contended by Counsel that:
1. There must be an act that amounts to stealing as an element or ingredient to establish the offence of robbery. Counsel argued that the offence of robbery is stealing and so what is said to be stolen must be such as could be an item capable of being stolen. According to Counsel, the evidence relied upon by the Court, was that of PW1, PW2 & PW6. (See pages 30-34, 44-46 of the record of appeal). Counsel however, submitted that the evidence of PW1 and PW2 in proof of the first ingredient of the offence of robbery was hearsay evidence and thus inadmissible. He contended that the said evidence of the PW1 was discredited as hearsay under cross-examination and referred to page 31 of the record of appeal where PW1 stated that: “I don’t know whether there was any relationship between the accused and the victim. I don’t know what transpired between the accused and the victim that led to the incident of the day”. In the case of the PW2, Counsel submitted that there was a similar statement under cross-examination in page 33 of the record of appeal. See EMMANUEL AYO vs. THE STATE (2014) LPELR-23786(CA). Counsel nevertheless conceded that it was only the PW6 that gave direct evidence and testified that he was robbed of his motorcycle and in addition conceded that on that account there might have been an act that amounted to stealing.
2. Items were stolen by the use of threat or threat to use violence for the offence of robbery to be proved. It was contended by learned Counsel that the Learned Trial Judge at page 71 of the records of appeal stated as follows:
“…Exhibit C no doubt is a kitchen knife. Exhibit C according to PW4 Inspector Rabiu Garba had stated that they visited the scene but that nothing was recovered but the knife Exhibit C was brought to them after the case was transferred to them at CID. He identified Exhibit C as the knife that was brought to them. Under cross-examination, PW4 stated that the people who arrested the accused were the ones who recovered the knife when the accused was trying to run away. In their testimonies however, PW1 and PW2 did not say anything about Exhibit C not to talk of recovering same. If anything, PW6, the victim identified Exhibit C as the knife being used by the accused to inflict injuries on his body. I have examined Exhibit C brought before this Court. I have not seen any traces of stain of blood on it. However, what is clear from the testimony of PW6 is that a knife was used to cut his body. This evidence was corroborated by the testimony of PW3, Sergeant Nuhu Shittu who stated that the accused admitted to him that he used a local barber’s knife to inflict injuries on the victim. See Iko v State (2005) 1 NCC 499 at 523. In my view, even on the strength of these pieces of evidence, the prosecution can be said to have proven this element of the offence and I so hold.”
Arising from the foregoing, Counsel submitted that the learned trial judge was wrong to have relied on the testimony of PW1, PW2, PW3, PW4 and PW6 in finding that the Prosecution proved the 2nd ingredient, when there was no evidence of the use of threat, violence or weapon by the Appellant. Furthermore, it was contended that there are material contradictions that cast doubts on the case of the prosecution and the findings of the trial Court and should be set aside for the following reasons:
Firstly, Counsel argued, that the PW3 testified that the Appellant admitted that he used a local barber’s knife to inflict injury on the victim, but that under cross-examination, the PW3 further testified that “he did not see the local barber’s knife; that it was the accused that mentioned it in his statement in Exhibits A and A1”. See page 37 of the record of appeal. Interestingly, Counsel further argued that the PW5, who is the exhibit keeper testified that a kitchen knife with no handle was brought to his office for safe custody. He said in addition that in one breath, the PW3 refers to a local barber’s knife while in another breath; PW5 refers to a kitchen knife.
Apart from this, it was further contended by Counsel that there were material contradictions, which disproved this element of the offence of robbery and that the Learned trial judge was wrong when he held that: “I have examined Exhibit C brought before this Court. I have not seen any traces of stain of blood on it. However, what is clear from the testimony of PW6 is that a knife was used to cut his body. This evidence was corroborated by the testimony of PW3, Sergeant Nuhu Shittu who stated that the accused admitted to him that he used a local barber’s knife to inflict injuries on the victim”. The submission of Counsel here is that a barber’s knife differs from a kitchen knife and that this casts reasonable doubt in the case put up by the prosecution. He said that the evidence of the PW3 is contradictory and not consistent with the evidence put forward by PW5 and cannot corroborate the evidence of PW6.
Secondly, it was also argued, that there was contradiction in the evidence of PW1, PW2 and PW4 as to the recovery of Exhibit C (the knife). He said that PW4 in his evidence testified that: “the team also visited the scene of the crime. Nothing was recovered at the scene, after the case was brought to us they brought the knife the accused used in stabbing the deceased. It’s white and has no handle. It is only the knife that was given to us.” (See page 41 of the records of appeal. However, Counsel further argued that PW4 in explaining the people that brought the knife under cross examination testified that “the knife has no handle. I did not recover anything from the scene. The people that arrested him recovered the knife when he was running away. I cannot recall the number of people who recovered the knife”. (See pages 41 of the record of appeal). Counsel contended that it is surprising that the PW1 and PW2 never mentioned a knife in their evidence and were both consistent in their testimonies when they respectively testified that the motorcycle was the only thing recovered on the day of the incidence. (See page 31 and page 33 of the record of appeal). Counsel therefore wondered who recovered the knife, in the light of the fact that PW1 & PW2 only recovered the motorcycle? He further queried how the mystical knife appeared all of a sudden? Is it possible that the knife was fabricated?
The argument of learned Counsel in support of the foregoing is that the scenario highlighted above once again casts doubt on the case of the prosecution. He submitted that for contradiction in the evidence of prosecution witnesses to be material and capable of rendering the evidence unreliable and not capable of being acted upon, such contradictions or inconsistencies must relate to the material ingredients of the offence charged. Counsel contended that the evidence of the prosecution as to the second ingredient of the offence was distorted and submitted that the testimony of PW1, PW2, PW4, which was material to the proof of the 2nd ingredient, was contradictory and inconsistent and therefore unreliable.
See EJIGBADERO vs. STATE (1978) 9 & 10 S.C. 81; NWOSISI vs. STATE (1976) 6 SC 109.
Thirdly, Counsel contended that the Learned Trial Judge agreeing that the evidence in proof of the 2nd ingredient was distorted, ended up still contradicting himself by placing reliance on the contradictory evidence which was unreliable in finding the Appellant guilty of robbery, when it held that: “However, what is clear from the testimony of PW6 is that a knife was used to cut his body”. (See page 71 of the records of appeal). The submission of Counsel is that the Learned Trial Judge’s finding was wrong following the contradictory evidence of the prosecution witnesses with regard to the knife. It was further submitted that the proper thing for the learned trial judge to have done at that stage was to looked for medical evidence, which would have proved that the injury sustained by the PW6 was either consistent with marks inflicted by a local barber’s knife or a kitchen knife. And that in the absence of that, the finding that a knife was used to cut PW6’s body cannot be justified in line with the material contradictions and doubts raised by the evidence of the prosecution.
Fourthly, Counsel argued that the PW6 testified that he saw the knife which was white and has no handle during the incident. (See page 45 of the records of appeal) but that under cross-examination, the PW6 further testified that the incident happened at night. (See page 45 of the record of appeal. Consequently, if it was dark, Counsel queried how the PW6 could have identified the knife in the dark? Also, he queried how it was possible for the PW6 to identify the knife in the dark and seeing that no knife was recovered at the scene of the crime?
Despite these manifest inconsistencies, which distorted and did not clearly lead to the proof of the case against the Appellant, Counsel contended that the learned trial judge still went ahead to convict the Appellant and argued that the Court cannot pick and choose what to believe and what not to believe. See ONUBOGU vs. STATE (1974) 9 SC 1 @ 17-21; UCHECHI ORISA vs. THE STATE (2018) LPELR-43896 (SC). It was submitted that the evidence of the prosecution at the Court below showed inconsistencies and raised reasonable doubts, which ought to have been resolved in favour of the Appellant. Against the backdrop of the foregoing, Counsel urged this Court to hold that the second ingredient of robbery i.e. “the use of threat or violence” was not proved against the Appellant and accordingly enter a verdict of discharge and acquittal in favour of the Appellant.
3. The appellant took part in the robbery: the contention of Counsel is that in satisfaction of this ingredient of the offence, the Learned Trial Judge held at page 75 of the records of appeal that:
“Applying these tests to the instant case reveals that the evidence of PW1, PW2, and PW6 proved that the confession of the accused is true…One most important feature of the confessional statement as contained in Exhibits A1 and B1 is that there are not only consistent with the other but they are also consistent with the testimonies of PW1, PW2, PW3 and PW6, the victim. In my humble view, the confession by the accused person as contained in Exhibits A1 and B1 are direct, positive and properly proved.”
Counsel submitted that the Learned Trial Judge was wrong in believing the evidence of PW6 as to the identity of the Appellant that was contradicted under cross-examination. He said that PW6 under cross-examination testified that it was dark during the incident and could not say the size of the bags of onions or recall the vigilantes as it was in the night and he was in pains. (See page 45 of the record of appeal). Counsel said that this piece of evidence goes to show that it was dark at the time of the incident and that it is improbable that PW6 would have identified the Appellant as the attacker in the night with no light in the area. He added that this is consistent with the fact that PW6 at the trial Court could not recognise his statement. Also, that PW6 during the supposed trip to Rabah must have been facing the road at all times and thus had no opportunity to observe his customer before it became dark. It was further submitted that the identification evidence of PW6 was not credible and failed to link the Appellant as the robber.
It is also contended that PW6 would have been most unable to determine who attacked him in the night and that nowhere in his statement did he give a description of the Appellant to the police or stated the opportunity he had of observing the Appellant or the features of the Appellant that he noted and communicated to the police. Furthermore, Counsel contended that the evidence of PW1 and PW2 in proof of the third ingredient of the offence of robbery was hearsay evidence and thus inadmissible. He said that evidence of PW1 was discredited as hearsay under cross-examination. See page 31 of the record of appeal where PW1 stated that: “I don’t know whether there was any relationship between the accused and the victim. I don’t know what transpired between the accused and the victim that led to the incident of the day. PW2 made a similar statement under cross-examination in page 33 of the record of appeal. The contention of Counsel is that reliance could not be placed upon it to convict the Appellant, but that the Trial Judge erroneously placed undue weight and reliance on the evidence of PW1 and PW2 to corroborate the evidence of PW6. See EMMANUEL AYO vs. THE STATE (2014) LPELR-23786 (CA), where this Court per ABIRIYI, JCA held thus:
“Where the only eyewitness to a crime is the accused alone, whatever any other witness would testify to as to the unlawful act is hearsay. See Ahmed v. State (1999) 7 NWLR (Pt. 612) 641.”
Arising from the foregoing, Counsel urged this Court to hold that the third ingredient of robbery was not proved against the Appellant and accordingly enter a verdict of discharging and acquitting the Appellant on the ground that the prosecution was unable to prove this offence beyond reasonable doubt against the Appellant.
RESPONDENT:
ISSUE ONE:
In arguing this issue, learned Counsel for the Respondent submitted that the learned trial Court did not infringe upon the Constitutional right of fair hearing of the Appellant due to the fact that the Appellant was represented by Counsel who handled his case right from arraignment up to the point of judgment. According to Counsel, the Appellant was accorded ample opportunities to be heard and that he equally testified in his defense as DW1 and tendered 2 exhibits; Exhibits D and D1 the statement of victim. Refer to pages 21 and 22 of the records. Counsel therefore further submitted that the constitutional provisions of Section 36(6)(a) – (e) of the 1999 Constitution (as amended) were duly complied with and urged this Court to resolve Issue one in favour of the Respondent and against the Appellant.
ISSUE TWO:
In arguing this issue, Counsel contended that a confessional statement is one of the grounds upon, which a Court can convict and sentence the Appellant as it is one of the means by which guilt of an accused can be established. Counsel referred to STATE vs. USMAN ISAH (2013) 8 NCC 320 Ratio 8 at 325. According to learned Counsel, the prosecution while tendering Exhibits A, A1, B, and B1, which are confessional statements of the Appellant made at Unguwar Rogo Police Division and SCID, the Appellant did not object to the admissibility of these statements on ground of involuntariness, which would have resulted to the conduct of a trial within trial, but rather attempted to renege from his confessional statements. See page 15 of the record of proceedings, thus:
Shettima: “We would be objecting to the admissibility of the statement on the grounds that the accused is not the maker.”
Against the backdrop of the foregoing, Counsel contended that the Trial Court was right in admitting the Confessional statement and acting upon it as the said confessional statement was proved to be true regards being had to the testimonies of all the witnesses especially the PW6. See page 25 of the judgment and also ISHOR IKPO vs. STATE (2016) 13 NCC 513 at page 518. According to learned Counsel, the trial Court was therefore right to accept and convict on the confessional statement of the Appellant having been tested and found to be true.
Counsel submitted that both statements were found to be consistence with what happened in the alleged offence and that the statements were corroborated by other external evidences and testimonies outside the confession thereby establishing the truthfulness of the contents, and that retracting same cannot avail the Appellant. See AKINFE vs. STATE (1988) 7 SCNJ (PT. 2) 288. In addition, Counsel stated that the trial Court basing its conviction on Exhibit C cannot be upturned even on appeal. See OGUDO vs. STATE (2011)202 LRCN 8.
On the contention of Appellant’s Counsel concerning the failure of the Prosecution to tender the Appellant’s statement made at the Unguwar Rogo Police Division, Counsel submitted that the prosecution tendered the said Confessional Statement made at the Unguwar Rogo Division and that this was admitted and marked as Exhibit A and A1 (Hausa and English version). It was however contended that it was the additional statement that was not tendered and argued that the prosecution is not duty bound to call a host of witnesses in order to prove its case. Once it is able to produce credible and convincing evidence of the commission of the offence by the accused to a level beyond reasonable doubt, the onus is discharged. See AYENI vs. STATE (2016) 13 NCC 466 at page 475-476. As far as Counsel is concerned the confessional statements of the Appellant were recorded in substantial conformity with the requirement of Criminal Procedure Code applicable in Sokoto State considering the testimonies of PW3 and PW4 at pages 10, 14 and 15 of the records of proceeding. Counsel urged this Court to resolve the 2nd issue in favour of the Respondent and against the Appellant.
ISSUE THREE:
In arguing this issue, Counsel contended that in all criminal cases such as the present case, the burden is on the prosecution to prove its case beyond reasonable doubt. SeeANI & ANOR vs. STATE (2009)2 SCM 147; IKO vs. STATE (2005)1 NCC at 500 pg 503 and Section 135 of the Evidence Act, 2011 as amended. According to Counsel, the Appellant was tried convicted and sentenced to 21 years imprisonment for the offence of Robbery. Counsel submitted that in proving the offence, the prosecution is required to prove the following elements:-
1. There must have been a robbery
2. That the robbery was armed; and
3. The accused (Appellant in this case) is the robber.
See LEGI MOHAMMED vs. THE STATE (2014) 15 NCC AT 23 pg. 183 and Section 298 of the Penal Code.
It is further submitted by Counsel that in criminal trials the guilt of an accused person can be established through any of the followings:-
1. Direct, eye witness account
2. Circumstantial evidence or
3. Confessional statement of the accused.
See – ADEKOYA vs. STATE (2013) 7 NCC AT 1 PG 32
– NIGERIA NAVY & ORS vs. LAMBERT (2007)12 SCM pg 433.
In his arguments, Counsel submitted that the fact that robbery occurred in this case was neither contradicted nor challenged, regard being had to the evidence of witnesses and exhibits tendered before the Court especially evidence of PW6 and Exhibits B, B1 and C. Counsel said that the Court was therefore right to oblige, accept, believe and to also act upon the truth of what was testified. See SEGUN AJIBADE vs. STATE (2013) 8 NCC pg. 221. It was also contended that based on the testimony of the PW6 and Exhibits A, A1, B, B1 and C, the Prosecution was able to prove that the robbery actually took place and the PW6 was able to identify Exhibit C, the knife that was used to inflict injuries on him by the Appellant in committing the robbery. See page 20 of the records of proceedings and also the confessional statements of the Appellant.
Learned Respondent’s Counsel also argued that at the trial Court there were unequivocal testimonies of witnesses, which shows that all of the above ingredients and the above types of evidences were proved beyond reasonable doubt especially in the testimony of the PW1 at page 5; PW2 at page 7 and PW6 at page 19 of the record; that the victim PW6 further narrated at page 20 of the record how the Appellant was arrested at the scene of the crime when he said:
“…the man with camel also shouted for help and another man also came and they arrested the accused person.”
Counsel contended that this testimony corroborates the testimony of the PW2 at page 7 of the record where he stated thus:-
“He tried to snatch my stick but I overpowered him and arrested him and took him where my camel was.”
According to learned Counsel, this testimony further corroborates the evidence of the PW1 at page 6 of the record, where he stated thus:-
“I then called one Sani who was ahead of me and asked him to catch a thief. Sani has a camel and Sani removed his stick and the accused left the motorcycle and ran into the farm…the accused was arrested and we took him to where the motorcycle was left.”
Arising from the foregoing, Counsel argued that the above testimonies confirmed and conclusively proved that the Appellant was the one that robbed the PW6. Considering the above, Counsel urged this Court to dismiss the submissions of the Appellant’s counsel and resolve issue No. 3 in favor of the Respondent.
RESOLUTION OF APPEAL
There does not seem to be any disputes as to the brief facts of this case which are as clear as day light. The day was the 7-4-2017 at about 9.00pm at Durbawa Village Sokoto, Sokoto State of Nigeria when a group of Vigilantes brought the Appellant, the said Mustapha Adamu Rara to the Unguwar Rogo Police Station in connection with a case of Robbery. He was apprehended in connection with the case involving the theft of a motor-cycle belonging to Yusuf Lawali of Gwiwa Area of Sokoto, who sustained injuries from the attack in the course of the Robbery incident. The incident had occurred at about 5.30 pm on the fateful day, when the victim, Yusuf Lawali at Rabah Maba Village was operating as commercial cyclist, popularly referred to as: “Kabu-Kabu” and had been engaged to carry the Appellant on a journey to Rabah when he was attacked with a local barber’s knife by the Appellant who dispossessed him of his Motor Cycle. At the Police Station at Unguwar Rogo, Sokoto the Appellant as Suspect, made confessional statements admitting that he committed the offence. These statements were admitted and marked as Exhibits A and A1, consisting of the English and Hausa versions of the Statements. These Statements, which later generated a lot of furor in the course of trial, were tendered and the objection raised by the defense was to the effect that the Statements were not made by the Appellant and not on the basis of the fact that they obtained under duress or involuntarily and which would have necessitated the conduct of a trial-within-trial. Indeed at page 36 lines 1-3 of the printed record, when the Statements were tendered, learned defense Counsel, one SHETIMA simply said:
“SHETIMA: We would be objecting on ground that the accused is not the maker of the Statement. We urge Court to reject same and mark same rejected.”
In firing the first salvo while arguing this Appeal, learned Appellant’s Counsel made a heavy weather contending that the Right of the Appellant to fair hearing was infringed upon, because an additional statement made by the Appellant at the Unguwar Police State after his apprehension was not tendered in Court. Perhaps, what learned Appellant’s Counsel had seem to forget is that the Police activities at Unguwar Police Station were just a stopgap to the real investigations to the crime which the State CID later carried out when the matter was transferred to them.
Testifying at pages 39-40 of the printed records, one Inspector Rabiu Garba attached to the State CID Sokoto as IPO was detailed to investigate this matter and this is what was recorded of him by the learned Court below:
“I know the accused person on 17-4-2016 while I was on duty at State CID, a case of Robbery and causing hurt was transferred from Unguwar Rogo Police Station to State CID Sokoto. My team was detailed to investigate the case. I was detailed to record the statement of the accused voluntarily, he thumb printed and which I did in Hausa Language under word of caution. I read the word of caution to him, he understood and he thumb printed, I then signed and he gave me his statement voluntarily and I recorded it. After recording his statement voluntarily, he thumb printed and I counter signed…”
It is important to note that the product of the activities of the Police at the State CID Sokoto was yet another set of Statements obtained from the Appellant which were indeed confessional in nature and which were admitted as EXHIBITS B and B1, consisting of the Appellant’s confessional statements, the English and Hausa versions respectively. Nothing at this stage was further raised about this additional statements until here on appeal and learned Appellant’s Counsel along with the Appellant have not given this Court any hints as to what was contained in the additional Statements. The settled position of the law is that a trial Court or an Appellate Court cannot make a finding on a Statement not tendered during trial as it would not be evidence properly adduced at the trial and therefore not legal evidence. See the cases of NWABUEZE vs. THE STATE (1988) 4 NWLR (PT. 86) 16; ESANGBEDO vs. THE STATE (1989) 4 NWLR (PT. 113) 57.
In addition, it is even doubtful whether as claimed by the PW1 under cross examination, it is actually correct to say that the Appellant even made any additional statements because by the Appellant’s own showing during his examination-in-chief no such thing took place. His evidence-in-chief at page 48 of the printed records lines 12 to 18 is instructive in the circumstances;
“At Unguwar Rogo they asked me my name and I replied them. I told them my name and business etc. As I was telling them, they were NOT WRITING. After given (sic) them the information that I have two wives; from there they (Police) at Unguwar Rogo Police Division…hit me with sticks on my hand, legs and forehead. After they had finished beating me I was taken to State CID Office. Exhibits A and A1, I only gave them my name, address and family.”
It is instructive to note that even under his examination-in-chief and subsequent cross-examination, the Appellant never for once talked of any additional statements. Here is a situation in which he had already denied making any statements at all including Exhibits A and A1 to which the Prosecution had credited him, let alone any additional statements for that matter. As far as the Appellant was concerned, at the Ungawar Police he did not make any statements and that even when he gave his name to the Policemen, they did not write down whatever he was saying. To this end, all the hot air blown by learned Appellant’s Counsel concerning some non-existent additional statement and the treatise postulated by learned Counsel for the Appellant concerning the purported breach of his right to fair hearing, are clearly of no moment.
In respect of the second issue nominated for the determination of this Appeal dealing with the question of whether the Court below was right in admitting the confessional statement of the Appellant despite the fact that it was involuntarily procured, it may just be proper to state that the question of the voluntariness and the veracity of the confessional statements of the Appellant admitted as Exhibits A and A1 on the one hand and Exhibits B and B1 on the other hand at the Court below was vigorously canvassed in this Appeal. This issue was no doubt subsumed in the much enlarged question of whether the learned trial Court rightly reached a conviction against the Appellant based on laid down principles of law. Learned Appellant’s Counsel who had rooted for a verdict of an acquittal had contended that the trial Court’s decision had occasioned a miscarriage of justice.
Perhaps, what needs to be said at this point is the fact that the burden to establish the culpability of the accused person standing trial for the offence of robbery or any other offence rests squarely on the shoulders of the prosecution who must prove all the material ingredients of the case beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011 as Amended and plethora of decided authorities on the subject. What should perhaps, be stated here as corollary to the above, is the fact and from which the prosecution gets a modicum of succour that in all criminal trials the prosecution has the benefit of relying on any of the following forms of evidence in discharging the burden placed on it by law;
a. Confessional statement.
b. Circumstantial evidence
c. Evidence of an eye witness account.
See the cases of EMEKA vs. STATE (2001)14 NWLR (pt. 734) page 666 at 683, AKINMOJU vs. STATE (1995) NWLR (pt. 406) 24 at 2012.
It would be recalled that learned Appellant’s Counsel had contended very vigorously that there was no credible confessional statement warranting the trial Court to have convicted the Appellant. It would also be recalled however, that Exhibits A and A1, and B and B1 were in the course of trial admitted as confessional statements of the Appellant without an objection. Rather than object on the basis of the fact that the statements were involuntarily made, Counsel had objected on the basis that the statements were not made by the Appellant. In anyways, Section 27 (1) of the Evidence Act (As amended) defines a confession thus:
“A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.”
It is further provided in Sub-section 2 that:
“Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.”
Against this backdrop, it is important to note that the Appellant, in the course of his evidence-in-chief before the lower Court, retracted from the said Exhibits A and A1, and B and B1. The settled position of the law, however is that a retraction of a confession does not ipso facto render the confession inadmissible. See the old case of R. vs. JOHN AGAGARIGA ITULE (1961) 1 ANLR 402 (FSC) where the Supreme Court per BRETT, Ag CJF held thus;
“A confession does not become inadmissible merely because the accused person denies having made it and in this respect a confession contained in a statement made to the Police by a person under arrest is not to be treated different from any other confession. The fact that the Appellant took the earliest opportunity to deny having made the statement may lend weight to his denial. See R vs. SAPELE & ANOR (1952) 2 FSC 74 but it is not in itself a reason for ignoring the statement.”
It would be further recalled that the Appellant took the earliest opportunity when the statement was offered in evidence to deny having made it. But the position remains in law, that a mere denial without more, even at the earliest opportunity, cannot, on the bare facts of the case, lend any iota of weight to the denial. Apart from the fact that the denial is a bare statement bereft of any supporting facts, it is by and large, standing only on the ipsi dexit of the Appellant. To make matters rather worse and as revealed by the printed records in this case, the said statements were not even challenged on grounds of involuntariness or any other at all.
Arising from this position, in which the voluntariness or otherwise of the statements were neither raised nor challenged at the trial, this Court therefore finds and holds that the prosecution proved affirmatively that Exhibits A and A1, and B and B1 were voluntary confessional statements of the Appellant. Regardless of this position, the usual thing in all criminal trials is that the burden of proving affirmatively beyond doubt that the confession was made voluntarily is always on the prosecution, which this prosecution succeeded in doing as expected in this case. See the cases of JOSHUA ADEKANBI vs. AG WESTERN NIGERIA (1961) All NLR 47; R vs. MATON PRIESTLY (1966) 50 CR APP. R 183 at 188; ISIAKA AUTA vs. THE STATE (1975) NNLR 60 at 65 SC on the issue.
On the question of weight to be attached to a confessional statement whether retracted or not retracted the tests are as laid down in the old English case of R vs. SYKES (1913) 8 CR APP. R.233 approved by the West African Court of Appeal in KANU vs. THE KING (1952/55) 14 WACA 30 and several other decided cases on the subject. The tests therefore, as laid down in the case of R. vs. SYKES (Supra) to be applied to a man’s confession are; is there anything outside it to show that it is true? Is it corroborated?
Are the statements made in it of fact, true as far as can be tested? Was the Appellant, one who had the opportunity of committing the crime? Is his conviction possible? Is it consistent with other facts which have been ascertained and which have been as in this case proved?
In any event, it is within the province of the trial Judge to determine the admissibility of a confession upon proof by the prosecution that the statement was free and voluntary and having admitted the statements as in the instant case where there has been a retraction by the accused. It is desirable for the trial judge to find some corroboration in the evidence tending to show that the statement of the accused having regard to the circumstances of the case is true. See OKAFOR vs. THE STATE (1965) NMLR 20. Perhaps, the question to address here is whether there are any such corroborating circumstances, which makes the confessions true in this case? The learned trial judge at page 75 of the printed record, lines 6-20 had this to say on the issue:
“Applying these tests to the instant case reveals that the evidence of the PW1, PW2 and PW6 proved that the confession of the accused is true. PW1 stated that he was in the bush on his motorcycle when he heard a shout crying for help that a thief had snatched a motorcycle and called PW2 to help catch the thief and PW2 on his part tried to catch the accused but the accused jump from the motorcycle and run into a maize farm and PW2 pursued and arrested the accused and brought him to where his camel was then brought out a rope which they used in tying the accused and later handed him over to the Police at Durbawa, who later took the accused to the Unguwar Rogo Police Station…
…PW3 Sergeant Nuhu Shittu in his evidence corroborated further the confession of the accused when he stated that the accused admitted to him that he used a barber’s knife to inflict injuries on the victim.”
That the learned Appellant’s Counsel had produced a very incisive and formidable brief of argument in challenging the lower Court’s decision is not in doubt. But the failure to have challenged and confronted material points in an opponent’s case at the time it mattered most is a major setback to the Appellant’s Appeal even at this stage of this case. See the case of OKOSI vs. THE STATE (Supra) where the Supreme Court per BELGORE, JSC delivering the lead judgment in the case, had this to say;
“In all criminal trials, the defense must challenge all the evidence it wishes to dispute by cross examination. This is the only way to attack any evidence lawfully admitted at the trial. For when evidence is primary, opinion and not that of an expert and an accused person wants to dispute it, the venue for doing so is when that witness is giving evidence in the witness box. The witness should be cross examined to elucidate facts disputed, for it is late at the close of the case to attempt to negotiate what was left unchallenged.”
In respect of the retracted statements of the Appellant, the mere fact that he did subsequently retract the Exhibits A and A1, and B and B2 as the facts and circumstances of this case has shown, does not necessarily mean that the learned trial Court could not have acted on the statements more so when the Court successfully tested the truth in the confessions against the guidelines issued by the Court in the case of R. vs. SYKES (Supra). See pages 74 to 78 of the printed record, where the Court below did a yeoman’s service in carrying an in-depth analysis on the issue.
In addressing the issue of whether the learned trial Court rightly found that the ingredients of robbery established in this case against the Appellant, it is rather clear that from the testimonies of the prosecution witnesses and from the contents of Exhibits A and A1, and B and B1, which are the statements of the Appellant tendered at the Court below without objection, this Court finds itself unable to disagree with learned Respondent’s Counsel that the prosecution did not prove its case beyond a reasonable doubt as prescribed by the law. This Appeal therefore fails and it is accordingly dismissed. Consequently, the judgment and sentence of the High Court of Sokoto State, Sokoto Judicial Division in Charge No: SS/23C/2017 delivered by M. S. SIFAWA, J., (as he then was, but now HCJ-Sokoto) on the 11th June, 2018 is hereby affirmed.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of a preview of the lead judgment just delivered by my learned brother, Oho, JCA. I agree with his reasonings and conclusions.
I hereby adopt them as mine to also dismiss this appeal for being devoid of any merit. I abide by all the consequential orders in the lead judgment.
ABUBAKAR MAHMUD TALBA, J.C.A.: I had the opportunity of reading in draft the judgment just delivered by my learned brother FREDERICK O. OHO JCA. I entirely agree with his reasoning and conclusion. The appellant was charged with a one count charge of Robbery contrary to Section 1(1) of the Robbery and Fire Arms (Special Provisions) Act Cap R11 LFN 2004. The testimonies of all the prosecution witnesses (PW1 to Pw6) along with the statements of the Appellant tendered and admitted in evidence as Exhibits A, A1, B, B 1, without any objection, had proved beyond reasonable doubt the guilt of the Convict/Appellant. The Appellant was afforded every opportunity to defend himself and therefore the issue of denial of fair hearing is without any basis. Any objection to the admissibility of a confessional statement on grounds of involuntariness can only be made at the time when the statement is sought to be tendered in evidence. It will then allow the Court to conduct a trial within trial to determine its voluntaries.
However, a mere retraction of a confessional statement does not affect its admissibility in evidence. Rather the Court is to decide at the end of the trial the weight to attach to such as statement.
I agree with my learned brother that the appeal lacks merit and I also dismiss the appeal. I abide by the consequential order in the lead judgment.
Appearances:
KELECHI OBI ESQ. For Appellant(s)
AISHATU AHMAD KAOJE ESQ., (Ag. DPP, Ministry of Justice Sokoto) with him, ZAINAB BELLO ALIYU ESQ., (Asst. DCL, Ministry of Justice, Sokoto) For Respondent(s)
