STATE v. SALIHU (2022)

STATE v. SALIHU

(2022)LCN/16337(CA)

In The Court of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, January 28, 2022

CA/K/170/C/2019

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

THE STATE APPELANT(S)

And

SAIDU SALIHU RESPONDENT(S)

RATIO

THE PRIMARY DUTIES OF THE TRIAL COURT

Perception of evidence and evaluation of evidence are two crucial duties of a trial Court. Perception entails receiving all relevant evidence into its records, whilst evaluation has to do with weighing the evidence received in the context of surrounding circumstances. Indeed, the major preoccupation of a trial Court is to evaluate evidence adduced by the parties, ascribe probative value thereto and ultimately reach a decision. Essentially, a finding of fact by a trial Court entails both perception and evaluation of evidence [see WACHUKWU v. OWUNWANNE [2011] 14 NWLR (PT 1266) 1 and GUARDIAN NEWSPAPERS LTD v. AJEH [2011] 10 NWLR (PT 1256) 574]; and an appeal against the judgment of a trial Court in a criminal matter will be dismissed once the judgment positively answers the following queries: (i) Did the prosecution prove the essential elements of the offence; (ii) Was the case proved beyond reasonable doubt; and (iii) Was the evaluation of the evidence of the prosecution and defence witnesses properly done. See OSUAGWU v. STATE [2013] 5 NWLR (PT 1347) 360. The relevant enquiry therefore is as to whether the above queries were answered positively in the judgment appealed against. PER AFFEN, J.C.A.

THE PRESUMPTION OF THE INNOCENCE OF AN ACCUSED PERSON UNTIL PROVEN GUILTY

By S. 36(5) CFRN 1999, every person charged with a criminal offence is presumed innocent until proved otherwise; thus, the burden is always on the prosecution to establish the guilt of the accused person on the criminal threshold of proof beyond reasonable doubt. Thus, it is if, and only if, the prosecution succeeds in proving the commission of a crime beyond reasonable doubt that the burden of establishing that reasonable doubt exists shifts to the accused. See Ss. 135 and 137 of the Evidence Act, 2011. It is incompatible with the presumption of innocence to continue a criminal trial with the hope that the only incriminating evidence capable of supporting a conviction would be supplied by the accused. See THE PROSECUTOR v. LAURENT GBAGBO & ANOR [ICC- 02/11-01/15 – delivered on 16/8/19].
The prosecution has the onus of proving all the essential ingredients of the offence(s) charged beyond reasonable doubt. See STATE v. SADU [2001] 33 WRN 21 at 40. Where the prosecution fails to do so, the charge is not made out and the Court is bound to record a verdict discharging and acquitting the accused. See MAJEKODUNMI v. THE NIGERIAN ARMY [2002] 31 WRN 138 at 147. Also, if the Court were left in a state of doubt or uncertainty on the totality of the evidence adduced, the prosecution would have failed to discharge the onus of proof cast upon it by law and the accused would be entitled to an acquittal. See UKPE v STATE [2001] 18 WRN 84 at 105. PER AFFEN, J.C.A.

THE POSITION OF LAW ON PROOF BEYOND REASONABLE DOUBT

However, proof beyond reasonable doubt does not mean proof beyond every shadow of doubt (see MILLER v. MINISTER OF PENSIONS (1947) 2 ALL E.R. 372 at 373 –per Lord Denning, AKALEZI v. THE STATE [1993] 2 NWLR (PT. 273) 1 and EBEINWE v. STATE [2011] 1 MJSC 27), but such proof as would reasonably and/or irresistibly lead to the inference that the accused committed the offence. See AKINYEMI v. STATE [1996] 6 NWLR (PT 607) 449 and ONI v. STATE [2003] 31 WRN 104 at 122. The prosecution is not bound to prove the case with mathematical precision or exactitude: ADEOYE v. THE STATE (2011) LPELR—9091(CA).
What must always be borne in mind is that absolute certainty is impossible in any human adventure, including the administration of justice: BAKARE v. STATE (1987) 3 SC 1. Thus, once the prosecution proves that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt. See BABARINDE v. STATE [2014] 3 NWLR (PT 1395) 568 and ADELEKE v. STATE [2013] 16 NWLR (PT 1381) 556.

THE CRIMINAL OFFENCE OF CONSPIRACY

INGREDIENTS OF THE OFFENCE OF MURDER

As it relates to the substantive offence of armed robbery, the prosecution is obligated to demonstrate the following in order to secure conviction: (i) the factual reality of a robbery or series of robberies; (ii) the defendant’s participation in the robbery or series of robberies; and (iii) at the material time the offence was being committed, the defendant was armed with a firearm or offensive weapon or in the company of those so armed. See EMMANUEL EYO v. THE STATE (2016) LPELR-48154(SC) at 17- 18, OLAYINKA v. STATE [2007] 9 NWLR (PT. 1040) 561, NWACHUKWU v. STATE [1985] 3 NWLR (PT. 11) 218, SUBERU v. STATE [2010] 8 NWLR (PT. 1197) 586, BOZIN v. THE STATE [1985] 2 NWLR (PT. 8) 465, ANI v. THE STATE [2003] 11 NWLR (PT. 830) 145, ATTAH v. THE STATE [2010] 10 NWLR (PT. 1201) 190 at 244,OGUDO v. STATE [2012] ALL FWLR (PT. 629) 1011 and FOLORUNSHO ALUFOHAI v. THE STATE supra amongst a host of other cases. The prosecution is enjoined to prove all three ingredients beyond reasonable doubt. See CHUKWUKA OGUDO v. STATE (2011) 12 SCNJ (PT. 1) at 22. PER AFFEN, J.C.A.

PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment): The Respondent, Saidu Salihu and two others stood trial before High Court of Kaduna State (coram: G. I. Kurada, J.) in Charge No. KDH/KAD/110C/2016: The State v. Emmanuel Thomas (alias Bantex) & 2 Ors on a 3-count charge of conspiracy to commit armed robbery, armed robbery, and inflicting injury on the victim at the time of the robbery being offences contrary to Ss. 6(b), 1(2)(a) and 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of Nigeria 2004. The Respondent was the 2nd accused. The specifics of the amended charge dated 4/1/17 are as follows:
“COUNT ONE:
That you, EMMANUEL THOMAS (alias Bantex), SAIDU SALISU and HAMZA SULEIMAN, on or about the 15th day of May 2016 agreed to do an illegal act, to wit: rob Brigadier General Basil Adonkie, and the said act was done pursuant to the agreement. You thereby committed the offence of Criminal Conspiracy punishable under 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria 2004.
COUNT TWO:
That you, EMMANUEL THOMAS (alias Bantex) SAIDU SALISU and HAMZA SULEIMAN, on or about the 15th day of May 2016, at about 4:00 am, while armed with a pistol, dagger, harmer and other dangerous weapons entered the house of Brigadier General Basil Adonkie, at No 15 Adonkie Drive, Federal Medical Housing Estate, Barnawa, Kaduna. You robbed him of GSM handsets, laptops, automatic pump action gun, lady’s purses, about N8000 cash, as well as other valuables. You thereby committed office of armed robbery punishable under 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria 2004.
COUNT THREE:
That you, EMMANUEL THOMAS (alias Bantex) SAIDU SALISU and HAMZA SULEIMAN, on or about the 15th day of May 2016, at about 3 am, while armed with a pistol, dagger, harmer and other dangerous weapons entered the house of Brigadier General Basil Adonkie , at No 15 Adonkie Drive, Federal Medical Housing Estate, Barnawa, Kaduna inflicted injury to his daughter Rosemary Adonkie arising from your gunshots. You thereby committed office of armed robbery punishable under 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria 2004.”

A full-dressed trial was conducted following the ‘not guilty” plea by the Respondent and other co-accused persons. In a considered judgment delivered on 12th October 2017 (which lies at pp. 47 – 71 of the records), the lower Court discharged and acquitted all three accused persons on the basis that the prosecution failed to establish their guilt on the criminal threshold of proof beyond reasonable doubt. The Appellant is dissatisfied with the judgment and filed the present appeal vide a Notice of Appeal dated 18/10/17, which was subsequently amended once and again: the extant one being the Further Amended Notice of Appeal dated 8/2/21 but filed on 9/2/21. Briefs were filed and duly exchanged. The ‘Appellant’s Amended Brief of Argument’ was filed on 9/2/21, whilst the “Consequential Amended Respondent’s Brief of Argument’ was filed on 16/6/21. The appeal was argued on 1/11/21.

From the seven (7) grounds of appeal raised in the Further Amended Notice of Appeal, the Appellant formulated a sole issue for determination, namely: “Whether the Appellant discharged the burden of proof in the charge in view of the evidence adduced in this case coupled with the confessional statement of the Respondent”.

On his part, the Respondent equally identified a sole issue for determination: “Whether the Appellant has been able to prove its case as contained in the charge against the Respondent beyond reasonable doubt in view of the totality of the evidence adduced before the lower Court as to warrant a setting aside of the discharge and acquittal granted in favour of the Respondent by the lower Court”. What is immediately obvious is that the sole issue identified by both parties is essentially the same: it condescends on the lower Court’s evaluation of the evidence adduced, relative to the burden of proof in a criminal trial such as the one that generated the present appeal.

Perception of evidence and evaluation of evidence are two crucial duties of a trial Court. Perception entails receiving all relevant evidence into its records, whilst evaluation has to do with weighing the evidence received in the context of surrounding circumstances. Indeed, the major preoccupation of a trial Court is to evaluate evidence adduced by the parties, ascribe probative value thereto and ultimately reach a decision. Essentially, a finding of fact by a trial Court entails both perception and evaluation of evidence [see WACHUKWU v. OWUNWANNE [2011] 14 NWLR (PT 1266) 1 and GUARDIAN NEWSPAPERS LTD v. AJEH [2011] 10 NWLR (PT 1256) 574]; and an appeal against the judgment of a trial Court in a criminal matter will be dismissed once the judgment positively answers the following queries: (i) Did the prosecution prove the essential elements of the offence; (ii) Was the case proved beyond reasonable doubt; and (iii) Was the evaluation of the evidence of the prosecution and defence witnesses properly done. See OSUAGWU v. STATE [2013] 5 NWLR (PT 1347) 360. The relevant enquiry therefore is as to whether the above queries were answered positively in the judgment appealed against.

By S. 36(5) CFRN 1999, every person charged with a criminal offence is presumed innocent until proved otherwise; thus, the burden is always on the prosecution to establish the guilt of the accused person on the criminal threshold of proof beyond reasonable doubt. Thus, it is if, and only if, the prosecution succeeds in proving the commission of a crime beyond reasonable doubt that the burden of establishing that reasonable doubt exists shifts to the accused. See Ss. 135 and 137 of the Evidence Act, 2011. It is incompatible with the presumption of innocence to continue a criminal trial with the hope that the only incriminating evidence capable of supporting a conviction would be supplied by the accused. See THE PROSECUTOR v. LAURENT GBAGBO & ANOR [ICC- 02/11-01/15 – delivered on 16/8/19].
The prosecution has the onus of proving all the essential ingredients of the offence(s) charged beyond reasonable doubt. See STATE v. SADU [2001] 33 WRN 21 at 40. Where the prosecution fails to do so, the charge is not made out and the Court is bound to record a verdict discharging and acquitting the accused. See MAJEKODUNMI v. THE NIGERIAN ARMY [2002] 31 WRN 138 at 147. Also, if the Court were left in a state of doubt or uncertainty on the totality of the evidence adduced, the prosecution would have failed to discharge the onus of proof cast upon it by law and the accused would be entitled to an acquittal. See UKPE v STATE [2001] 18 WRN 84 at 105.

The three modes of evidential proof in a criminal trial such as the present are: (a) direct evidence of witnesses; (b) circumstantial evidence; and (c) the confessional statement voluntarily made by a criminal defendant. See OKUDO v. THE STATE [2011] 3 NWLR (PT. 1234) 209 at 236, ADIO v. THE STATE (1986) 5 S.C. 194 at 219-220, EMEKA v. THE STATE [2001] 14 NWLR (PT. 734) 666 at 683 and OLABODE ABIRIFON v. THE STATE [2013] 13 NWLR (PT. 1372) 587 at 596.

Now, the 1st count of the charge is for conspiracy to commit armed robbery; whilst the 2nd and 3rd counts allege the substantive offence of armed robbery. The Appellant impugns the decision of the lower Court for not convicting the Respondent of conspiracy and armed robbery on the basis of his confessional statement [Exhibit 3) and the testimonial evidence of PW1, PW2 and PW3.

The inchoate offence of conspiracy consists not merely in the intention of two or more, but in the agreement of two (not being a husband and wife) or more persons to do an unlawful act or to do a lawful act by an unlawful means. See ISHOLA v. THE STATE (1972) 10 SC 63. So long as design rests in intention alone, it is not indictable; but when two or more persons agree to carry their design into effect, the very plot is an act in itself punishable if it is for a criminal object or for the deployment of criminal means. See MAJEKODUNMI v. R (1952) 14 WACA 64. The gravamen of the offence of conspiracy lies not in the doing of the act or effectuating the purpose for which the conspiracy is conceived, but in the forming of the scheme or agreement between the parties.
The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. Owing to its very nature, the offence of conspiracy is seldom proved by direct evidence but by circumstantial evidence and inference deducible from certain proved acts. See OBIAKOR v. STATE (2002) 6 SC (PT II) 33 at 40, EGUNJOBI v. FRN [2001] 53 WRN 20 at 54 and STATE v. OSOBA [2004] 21 WRN 113. Since the offence of conspiracy consists in the meeting of minds for a criminal purpose whereby the minds proceed from a secret intention to the overt act of mutual consultation and agreement, the offence can be proved through inferences drawn from surrounding circumstances. The circumstantial evidence on which a successful conviction for conspiracy can be predicated is evidence, not of the fact in issue but of other facts from which the fact in issue can be inferred, which evidence must be of such quality that leads compellingly to an inference of guilt of the accused. See ODUNEYE v STATE (2001) 1 SC (PT 1) 1 at 7. The point to underscore here is that conspiracy is an offence of itself, quite distinct and separate from the substantive offence. See STATE v. SALAWU (2011) LPELR-8252 (SC).
Indeed, in a trial for conspiracy and a substantive offence, it is not unusual for a Court to discharge an accused for the substantive offence but convict him for conspiracy. This is so because the ingredients for the offences are different and the actual commission of the substantive offence is not necessary to ground a conviction for conspiracy. See OBIAKOR v. STATE supra at 39 and ATANO v. A-G BENDEL STATE [1988] 2 NWLR (PT 75) 201 at 226 – 227.

As it relates to the substantive offence of armed robbery, the prosecution is obligated to demonstrate the following in order to secure conviction: (i) the factual reality of a robbery or series of robberies; (ii) the defendant’s participation in the robbery or series of robberies; and (iii) at the material time the offence was being committed, the defendant was armed with a firearm or offensive weapon or in the company of those so armed. See EMMANUEL EYO v. THE STATE (2016) LPELR-48154(SC) at 17- 18, OLAYINKA v. STATE [2007] 9 NWLR (PT. 1040) 561, NWACHUKWU v. STATE [1985] 3 NWLR (PT. 11) 218, SUBERU v. STATE [2010] 8 NWLR (PT. 1197) 586, BOZIN v. THE STATE [1985] 2 NWLR (PT. 8) 465, ANI v. THE STATE [2003] 11 NWLR (PT. 830) 145, ATTAH v. THE STATE [2010] 10 NWLR (PT. 1201) 190 at 244,OGUDO v. STATE [2012] ALL FWLR (PT. 629) 1011 and FOLORUNSHO ALUFOHAI v. THE STATE supra amongst a host of other cases. The prosecution is enjoined to prove all three ingredients beyond reasonable doubt. See CHUKWUKA OGUDO v. STATE (2011) 12 SCNJ (PT. 1) at 22.

The three modes of evidential proof by which the prosecution may establish the guilt of a criminal defendant are set out hereinbefore. In the case at hand, there was no eyewitness account of the robbery that allegedly occurred at the residence of Brigadier General Basil Adonkie on 15/5/16 and the Prosecution placed heavy reliance on the Respondent’s confessional statement (Exhibit 3), and circumstantial evidence as constituting corroborative evidence.

Often, the presence of the victim in establishing a charge of armed robbery is crucial. See OGUDO v STATE [2011] 18 NWLR (PT. 1278) 1 at 31-32. The names of Brigadier General Basil Adonkie, Mrs Basil Adonkie, Rosemary Adonkie and Zuzuna Adonkie are contained in the list of witnesses (at pp. 6 and 11 of the records), but none of them eventually testified at the trial. The records reveal (at p. 25) that learned prosecution counsel, Mrs A. I. Thomas informed the lower Court on 28/3/17 that several efforts were made “to get the victims of the robbery to testify but they have said that they are not interested in coming to testify… We cannot manufacture evidence. We therefore apply to close our case”. The frankness and candour exhibited by the learned prosecution counsel is in accord with the finest traditions of the Bar and deserves commendation. Nevertheless, the effect of absence of eyewitness account of the alleged robbery on the case presented by the prosecution cannot be lightly wished away.

The only witnesses fielded by the prosecution [PW1, PW2 and PW3] are police officers from the State C.I.D. Kaduna. Notably, the Respondent and the 1st accused (Emmanuel Thomas alias Bantex) were arrested by police officers from Barnawa Police Division before they were transferred along with exhibits four days later (on 19/5/16) to State CID Kaduna, whose officers subsequently arrested the 3rd accused. But no police officer from Barnawa Police Division testified at the trial. The absence of direct evidence is betrayed by the testimonial evidence of PW3 [Sgt. Safiyanu Ibrahim] who stated that the robbery occurred at 1:30 am whereas the charge alleged that it occurred at about 4:00 am. The charge equally alleged that General Adonkie’s daughter (Rosemary) suffered gunshot injury in the course of the robbery, but the testimony of PW2 [Cpl Benjamin Baki] is that: “On 20th May 2016, the 1st and 2nd Accused led us to the house of Brig. Gen B. Adoke (sic) and we saw his son that was injured during the attack”. So who was injured by gunshot during the robbery as alleged in Count 3: Daughter or Son? The prosecution did not clarify. In the absence of direct evidence proceeding from an eye-witness, this cannot be lightly wished away.

What is more, the Prosecution gave contradictory account on how the vehicle said to have been used for the robbery was recovered. PW2 stated in his evidence-in-chief that “[w]e went to the house of the 1st accused but we only recovered a car which we brought to the station and registered”, but buckled under cross examination when he stated that: “The car we recovered was abandoned by the driver of the Accused so we did not recover it from anybody”. Again, both PW2 and PW3 conceded that the Respondent and the 1st accused were arrested by police officers from Barnawa Police Station who recorded statements from them before they were transferred to State CID Kaduna, but the said statements were not produced in evidence. See pp. 20 – 21 of the records. This raises a presumption that the statement made by the Respondent at Barnawa Police Division are unfavourable to the prosecution’s case, and impacts negatively on the overall fairness of the trial. See OGUDO v. STATE [2011] 18 NWLR (PT. 1278) 1 at 21.

A statement made voluntarily by a person suspected to have committed a criminal offence, be it confessional or in denial of the crime with which he is being charged, is relevant and admissible. See OKOH v. STATE [2014] 8 NWLR (PT. 1410) 502 (SC). A confessional statement is always a handy potent tool in the arsenal of the prosecution for proving the offence charged. A free and voluntary confession of guilt made by an accused person, if direct and positive, is sufficient to warrant conviction without any corroborative evidence insofar as the Court is satisfied as to the truth of the confession. See YESUFU v. STATE (1976) 6 SC 167 at 163, IDOWU v. STATE (2000) 7 SC (PT 11) 50 at 62 and NSOFOR v. STATE [2004] 18 NWLR (PT 905) 292.

It is instructive that the Respondent retracted Exhibit P3 but the law is settled beyond peradventure that the retraction of a confessional statement or denial by an accused person that he made the statement does not ipso facto render the statement inadmissible. See ALARAPE v. STATE [2001] 14 WRN 1 at 20, KAREEM v. FRN [2001] 49 WRN 97 at 111, OBISI v. CHIEF OF NAVAL STAFF [2002] 19 WRN 26 at 38 – 39 and EGBOGHONOME v. THE STATE [1993] 7 NWLR (PT 306) 383 at 341.

The mere fact that a confessional statement is retracted by an accused person does not preclude the Court from acting on the basis of the retracted statement. See IKEMSON v. THE STATE supra at 455 at 468-469, NWACHUKWU v. THE STATE (2007) 12 SCM 447 at 455 and SHANDE v. STATE (2005) 22 NSCQR (PT. 2) 756.
The Court can convict on the basis of a retracted confessional statement. See MANU GALADIMA v. THE STATE (2013) 14 MRSCJ at 81 & 82. It is for the trial Court to take the retraction into consideration in determining the forensic utility of, or weight to be attached to, the confessional statement.
The test to be applied in this regard as laid down in the case of R v SYKES (1913) 8 Cr. App. R. 233 which was approved by the West African Court of Appeal in KANU v. THE KING (1952/55) 14 WACA 30 and followed in a long line of cases, is that a trial judge confronted with a retracted confessional statement should ask himself the following pertinent queries: (i) Is there anything outside the confession to show that it is true?; (ii) Is it corroborated?; (iii) Are the relevant statements made in it of facts, true as far as they can be tested?; (iv) Was the prisoner one who had the opportunity of committing the crime?; (v) Is his confession possible?; and (vi) Is it consistent with other facts which have been ascertained and proved? If the confessional statement passes these tests satisfactorily, a conviction founded on it would invariably be upheld unless other grounds of objection exist; but if the confessional statement fails these tests, no conviction can properly be founded on it. See IKPO v. STATE (2016) LPELR-40114 (SC), ACHABUA v. STATE (1976) NSCC 74 and GABRIEL v. STATE [2010] 6 NWLR (PT. 1190) 280 at 290. The lower Court applied the above tests and held at p. 71 of the records that:
“… [T]here is no evidence corroborating and confessions. There’s nothing which shows that the facts stated in the statements are true. There are no facts that have been proved and ascertained which are consistent with confessions. The trial has been rendered unfair. The evidence of the prosecution witnesses has been found to be doubtful and unreliable. There is no evidence from which I can infer an agreement by the accused persons to do or cause to be done an act which is illegal or which is legal by illegal means. Thus, the entire case has not been proved beyond reasonable doubt as required by law. The accused persons are therefore entitled to discharge and acquittal The accused persons are accordingly discharged and acquitted of all the three counts.”

In the light of the evidence adduced before it, the lower Court cannot be faulted for discharging the Respondent (and his co-accused persons). Whilst conviction can be based on the a retracted confessional statement, the law requires credible evidence outside of the confession which render the confession probable before such a retracted confessional statement can be acted upon. In this regard, either the testimonial evidence of someone who witnessed the crime or such circumstantial evidence that leads irresistibly to the conclusion that the accused committed the alleged offence is required. But the testimonial evidence of PW1, PW2 and PW3 is not of such character as would render the Respondent’s confession probable: they were not the police officers who arrested him. The police officers from Barnawa Police Division who effected the Respondent’s arrest were never fielded as witnesses; just as the victims of the robbery were not called to identify any stolen items. See the unreported decision of this Court in ADEDAYO OLADELE v. STATE (CA/IB/496C/2017, delivered on 9/6/21 –per Ogakwu JCA).

Contrary to the Appellant’s contention that there was no material contradiction in the case presented by the prosecution, the contradiction on how the vehicle was recovered seems to me material and render the guilt of the Respondent less probable. The Appellant contends that ‘where a defendant makes a confessional statement and the facts therein are used to recover stolen items as in the instant case, it will be safe to conclude that he made the statement, notwithstanding his retraction as such facts could only have been within his personal knowledge’. But records do not vindicate this contention. The testimony of PW3 under cross examination is unequivocal: “We did not recover any gun used for the robbery. Our team did not recover any stolen item. Our team did not recover any items”.

Thus, no question of using the Respondent’s statement to recover stolen items that would provide the required evidentiary succour for acting upon his retracted confessional statement arises, and the heavy reliance on KOLAWOLE v. STATE [2015] 8 NWLR (PT. 1460) 134 at 169 -170 is overly misplaced.

The role of an appellate Court is not that of a faultfinder raking up non-existent defects in decisions of lower Courts with a view to upturning same. No. The trial Court is a peculiar adjudicator upon whose shoulder the heaviest burden of adjudication lies. Evaluation of evidence and ascription of probative value to it fall within the province of a trial Court, and an appellate Court will not lightly interfere unless for compelling reasons.

In the case at hand, the evidence adduced by the prosecution did not provide the required credible evidence external to the Respondent’s retracted confessional statement, and the lower Court rightly held that the prosecution failed to prove his guilt beyond reasonable doubt, and consequently discharged and acquitted the Respondent on all counts.

This appeal is destitute of merit and ought to be dismissed. I so order. The judgment of the High Court of Kaduna State in Charge No. KDH/KAD/110C/2016 is hereby affirmed.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

FATIMA OMORO AKINBAMI, J.C.A.: I have read in draft the lead judgment of my learned brother, Peter Oyinkenimiemi Affen JCA, where the facts and issues in contention have been set out.

I am in agreement with the reasoning and conclusion and adopt the judgment as mine. I have nothing extra to add.