SULE ADAMU & ORS v. THE STATE (2013)

SULE ADAMU & ORS v. THE STATE

(2013)LCN/6458(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 18th day of September, 2013

CA/K/159/C/2009

JUSTICES:

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

1. SULE ADAMU
2. ADAMU MUHAMMED
3. GAMBO SULE
4. SHAGARI ABUBAKAR – Appellant(s)

AND

THE STATE – Respondent(s)

RATIO

THE BURDEN OF PROOF IN CRIMINAL MATTERS

It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. Where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal. It must, however, be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt. It simply means establishing the guilt of the defendant with compelling and conclusive evidence to a degree of compulsion which is consistent with a high degree of probability. Thus, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case will be said to have been proved beyond reasonable doubt – Sabi Vs State (2011) 14 NWLR (Pt 1268) 421, Iwunze Vs Federal Republic of Nigeria (2013) 1 NWLR (Pt 1324) 119, Njoku Vs State (2013) 2 NWLR (Pt 1339) 548, Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360, Ajayi Vs State (2013) 9 NWLR (Pt 1360) 589. PER ABIRU, J.C.A.

ESSENTIAL INGREDIENTS IN SECURING A CONVICTION FOR ARMED ROBBERY

It is settled law that the essential ingredients that the prosecution must prove in order to secure a conviction for armed robbery are (i) that there was indeed a robbery or series of robbery; (ii) that the robbers were armed with dangerous weapons; and (iii) that the accused defendant was the robber or one of the robbers – Osetola Vs State (2012) 17 NWLR (Pt 1329) 251, Osuagwu Vs State supra, Abiodun Vs State (2013) 9 NWLR (Pt 1358) 138, Ajayi Vs State supra. PER ABIRU, J.C.A.

WHETHER OR NOT THE APPELLATE COURT IS BOUND BY THE RECORDS OF APPEAL

It is trite law that an appellate court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower court. An appeal court is bound by the records of appeal and therefore an appellant is entitled to contest the judgment of a trial court only on the issues properly raised before the lower court and pronounced upon by that court – Oshatoba Vs Olujitan (2000) 5 NWLR (Pt 655) 159, Onwuka Vs Ononuju (2009) 11 NWLR (Pt 1151) 174, Oseni Vs Bajulu (2009) 18 NWLR (Pt 1172) 164, Ojiogu Vs Ojiogu (2010) 9 NWLR (Pt 1198) 1. It is also settled that parties should be consistent in cases they present at the trial court as well as in the appellate court – Suberu Vs State (2010) 8 NWLR (Pt 1197) 586 and Ologun Vs Fatayo (2013) 1 NWLR (Pt 1335) 303. PER ABIRU, J.C.A.

THE IMPLICATION OF THE TERM “OBTAIN”

THE DUTY OF AN ACCUSED PERSON WHO DESIRES TO IMPEACH HIS CONFESSIONAL STATEMENT

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kaduna State in Charge No KDH/KAD/105C/2006 delivered by Honourable Justice Gideon Isa Kuada on the 27th of June, 2008. The Appellants were arraigned before the lower Court on a two count charge of criminal conspiracy and armed robbery punishable under sections 6 and 1(2)(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004. They were alleged to have agreed among themselves to block the highway and to have robbed the convoy of the Commandant General of the Nigerian Defence Corps while armed with AK-47 rifles on the 13th of July, 2006 and during the course of which they killed two persons, Jonathan Osho and Alhassan Haruna and carted away the sum of N2 Million. The Appellants pleaded “Not Guilty” to the charge and the matter went to trial.

The Prosecution called three witnesses and tendered several exhibits in proof of its case while the Appellants called six witnesses, including the four Appellants, in their defence. At the conclusion of trial, the lower Court found the Appellants guilty on both counts and sentenced each Appellant to death by hanging by the neck. The Appellants were dissatisfied with the judgment and each of them caused individual notices of appeal, all dated the 13th of September, 2008, to be filed against it. Each notice of appeal contained six grounds of appeal.

In contesting the appeal before this Court, the Appellants filed a joint amended brief of arguments dated the 22nd of January, 2013 and it consisted of twenty-one pages and the joint amended brief of arguments was deemed properly filed by this Court on the 23rd of January, 2013. The Respondent filed a brief of arguments consisting of eighteen pages and dated the 12th of February, 2013 and it was filed on the 28th of February, 2013. At the hearing of the appeal on the 25th of June, 2013, Counsel to the Appellants and to the Respondent relied on and adopted their respective briefs of arguments.

In the brief of arguments, Counsel to the Appellants distilled two issues for determination and these were:
i. Whether the prosecution proved the three constituent elements of the offence of armed robbery against the Appellants beyond reasonable doubt to warrant their convictions and sentences.
ii. Whether the learned trial Judge was right to have convicted and sentenced the Appellants as charged on the basis of Exhibits 1, 1A, 2, 2A, 3, 3A, 4 and 4A, the extra judicial statements of each of the four Appellants.

Counsel to the Respondent similarly formulated two issues for determination in his brief of arguments and these were:
i. Whether Exhibits 1 – 4A, the confessional statements of the Appellants were wrongly admitted and acted upon by the trial Judge.
ii. Whether the trial Court was right to have come to the conclusion that the Appellants were properly identified by the first prosecution witness who was the victim of the robbery operation.

Reading through the processes filed in this matter, it is the view of this Court that the first issue formulated by the Appellants adequately covers the complaints of the Appellants in this appeal. This appeal shall be resolved on the basis of this singular issue.

Counsel to the Appellants prefaced his arguments with the provisions of section 36(5) of the Constitution on presumption of innocence and stated that where the prosecution alleges the commission of a crime such allegation must be proved beyond reasonable doubt. Counsel submitted that the prosecution must discharge this burden by proving every ingredient of the offence charged by credible evidence and that where, at the close of evidence, an essential ingredient of the offence has not been proved, a doubt would have been created as to the guilt of a defendant and he shall be discharged. Counsel referred to the case of Mustapha Vs State (2007) 12 NWLR (Pt 1049) 637, amongst others. Counsel stated that to sustain a charge of armed robbery, the prosecution must establish that (a) there was a robbery or series of robbery; (b) the robbery or each of the robberies was an armed robbery; and (c) the defendant was one of those who took part in the robbery; and that the ingredients co-exist and are conjunctive not disjunctive and must thus be established together. Counsel referred to the case of Bozin Vs State (1985) 2 NWLR (Pt. 8) 465, amongst others.

Counsel conceded that, from the evidence led by the prosecution witnesses in the instant case, there was no dispute that there was a robbery on or about the 13th of July, 2006 along the Kwoi-Jos Highway in Jaba Local Government Area of Kaduna State and that the robbery was carried out with the use of dangerous weapons. Counsel stated that what was in dispute was whether the Appellants participated in the said robbery. Counsel submitted that the plea of “Not Guilty” recorded for each of the Appellants connotes that every allegation of fact contained in the charge including the identity and names of the alleged armed robbers were denied by the Appellants and consequently, the burden of proving the identity and name of each Appellant beyond reasonable doubt rested squarely on the Respondent. Counsel submitted that in most robbery cases, the proper identification of the real culprit is very vital as this is what shows that the person charged was the same person seen at the locus criminis and he referred to the case of Ndidi Vs State (2007) All FWLR (Pt 381) 1617, amongst others.

Counsel thereafter reproduced the testimony of the first prosecution witness, one of the victims of the armed robbery incident, and stated that it was the only means of identification of the Appellants as participants in the armed robbery produced by the Respondent. Counsel stated that from the testimony of the witness, the circumstances at the scene of the crime could not have been reasonably conducive for the witness to have maintained his calm and cool to have a good memory or adequate time which would have enabled him identify the Appellants as the assailants, beyond reasonable doubt. Counsel submitted that in such circumstances, it was dangerous for the lower Court to have relied on the testimony of the witness identifying the Appellants as the armed robbers without an identification parade, particularly more so as the Appellants denied being at the scene of the crime. Counsel referred to the case of Mbenu Vs State (1998) 7 SCNJ 221, on the guidelines that a Court should adopt in evaluating evidence of identification of a defendant and submitted that failure to conduct an identification parade was fatal to the case of the Respondent in the circumstances of this case and he referred to the cases of Alabi Vs State (1993) 7 NWLR (Pt 307) 511, Ikemson Vs State (1989) 6 SCNJ 54, amongst many others. Counsel stated that though the Respondent had no obligation to call a host of witnesses to prove its case, it should have, in view of the weak evidence of identification given by the first prosecution witness, called the Commandant General of the Nigeria Civil Defence Corps who was also a victim of the armed robbery and was present at the scene of the crime and he submitted that this failure was fatal to its case.

Further, Counsel to the Appellants challenged the reliance placed by the lower Court on the confessional statements of the Appellants, Exhibits 1, 1A, 2, 2A, 3, 3A, 4 and 4A, and he stated that the Respondent did not show that each Appellant was confronted with the incriminating statements made against him in the statements of the other Appellants. Counsel submitted that it was an error in law to convict a defendant on the statement made to the Police by another defendant and he referred to the provisions of section 27(3) of the Evidence Act and of Rule 7 of the Criminal Procedure (Statements to Police Officers) Rules, Cap 30, Laws of Northern Nigeria 1963, which Counsel said was applicable in Kaduna Sate. Counsel stated that the omission was fatal to the admissibility of the confessional statements as Rule 9 of the Criminal Procedure (Statements to Police Officers) Rules made the statements inadmissible. Counsel also recanted the testimony of the second prosecution witness who tendered the confessional statements and Counsel emphasized the portion of the evidence where the witness stated that his superior officer “brought the accused to me to obtain their statements”. Counsel stated that the word “obtain” connoted a demand which rendered the caution administered ineffectual and made the statements involuntary and he referred to the cases of State Vs Salawu (2011) 18 NWLR 580, State Vs Audu (1971) NNLR 91, amongst others. Counsel urged the Court to resolve the issue for determination in favour of the Appellants.

In response, Counsel to the Respondent conceded that the Respondent had the onus of proving the allegation of crime against the Appellants beyond reasonable doubt, but stated that the standard of proof did not require the Respondent to prove the allegations beyond all iota or shred of doubt; Counsel referred to the cases of Onubogu Vs State (1974) 9 SC 1, Akinyemi Vs State (1999) 6 NWLR (Pt.607) 449, amongst others. Counsel endorsed the three ingredients stated by the Counsel to the Appellants as the necessary things that the Respondent must prove to sustain a charge of armed robbery and stated that once the three ingredients were proved, the Respondent would be held to have discharged the onus on it. Counsel stated that commission of an offence can be proved by direct evidence or by circumstantial evidence or by confessional evidence and he referred to Emeka Vs State (2002) 14 NWLR (Pt 734) 666. Counsel stated that the Respondent relied on both eye witness evidence and confessional evidence in proving the guilt of the Appellants in this case and he proceeded to reproduce the relevant portions of the confessional statement of each Appellant. Counsel submitted that the confessional statements satisfied the formal requirements of an extra-judicial statement of a defendant, were not challenged on the ground of involuntariness and constitute due corroboration for the eye witness evidence of the first prosecution witness. Counsel stated that the confessional statements were positive, direct, voluntary and consistent and were sufficient to sustain the charge against the Appellants and he referred to the cases of Kanu Vs State (1952) 14 WACA 30 and Ekpenyong Vs State (1991) 6 NWLR (Pt 200) 683.
On the issue of identification parade, Counsel submitted that it was not in all criminal cases that an identification parade was necessary and that where there is good and cogent evidence linking the defendant to the crime on the day of the incident or where a defendant identified himself by a confessional statement, identification parade is unnecessary. Counsel submitted that when the eye witness evidence of the first prosecution witness is coupled with the confessional statements of the Appellants, it makes identification parade unnecessary in the circumstances of this case. Counsel urged the Court to resolve the issue for determination in favour of the Respondent.

It must be stated that the focus of the arguments of Counsel to the Appellants in this appeal was on the substantive offence of armed robbery brought against Appellants before the lower Court, and not on the count of criminal conspiracy. It is settled law that the essential ingredients that the prosecution must prove in order to secure a conviction for armed robbery are (i) that there was indeed a robbery or series of robbery; (ii) that the robbers were armed with dangerous weapons; and (iii) that the accused defendant was the robber or one of the robbers – Osetola Vs State (2012) 17 NWLR (Pt 1329) 251, Osuagwu Vs State supra, Abiodun Vs State (2013) 9 NWLR (Pt 1358) 138, Ajayi Vs State supra. The prosecution must meet the above ingredients through credible evidence. The three ingredients must co-exist and where one of them is either absent or tainted with any doubt, then the charge is said not to be proved – Sabi Vs State supra.

Before going further to consider whether the prosecution proved the ingredients of armed robbery beyond reasonable doubt, it is pertinent to resolve the objections raised by the Counsel to the Appellants to the admissibility of the confessional statements of the four Appellants. The second prosecution witness, one Audo Agoro, testified that he recorded the statements of the four Appellants in Hausa Language and thereafter translated them into English Language and he tendered the Hausa and the English versions of each statement and they were admitted as Exhibits 1, 1A, 2, 2A, 3, 3A, 4 and 4A Counsel to the Appellants berated the admission of and the reliance placed on the confessional statements by the lower Court on the grounds (i) that each Appellant was not confronted with the incriminating statements made against him in the statements of the other Appellants, and (ii) that the statements were “obtained” from the Appellants by the second prosecution witness thereby nullifying the concept of voluntariness of the statements. Reading through the records of appeal, this Court cannot see where these issues were raised by the Appellants during the trial proceedings before the lower Court, either in the course of cross-examination of the prosecution witnesses or in the course of their testimonies, and they were not also raised in course of final address as Counsel who represented the Appellants in the lower Court waived his right of address. The issues were not also pronounced upon by the lower Court in its judgment.

It was in this appeal that Counsel for the Appellants raised the issues for the first time. It is trite law that an appellate court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower court. An appeal court is bound by the records of appeal and therefore an appellant is entitled to contest the judgment of a trial court only on the issues properly raised before the lower court and pronounced upon by that court – Oshatoba Vs Olujitan (2000) 5 NWLR (Pt 655) 159, Onwuka Vs Ononuju (2009) 11 NWLR (Pt 1151) 174, Oseni Vs Bajulu (2009) 18 NWLR (Pt 1172) 164, Ojiogu Vs Ojiogu (2010) 9 NWLR (Pt 1198) 1. It is also settled that parties should be consistent in cases they present at the trial court as well as in the appellate court – Suberu Vs State (2010) 8 NWLR (Pt 1197) 586 and Ologun Vs Fatayo (2013) 1 NWLR (Pt 1335) 303. The option open to an appellant seeking to raise a fresh issue on appeal is to seek the leave of the appellate Court to do so and where no leave was sought and obtained, the treatment of such issue by the appellate court would amount to an exercise in futility and a nullity as the appellate Court lacks jurisdiction to do so – Akpan Vs Bob (2010) 17 NWLR (Pt 1223) 421, Borishade Vs Federal Republic of Nigeria (2012) 18 NWLR (Pt.1332) 347. There is nothing on the records to show that Counsel to the Appellants sought for and obtained the leave of this Court to raise the issue.

Notwithstanding this finding, the Court will go ahead to consider the objections raised by Counsel to the Appellants for the sake of completeness. As stated above, the second prosecution witness said that he recorded separate statements for each Appellant and these separate statements were all tendered and were all admitted and relied upon by the lower Court. It is obvious from these facts that the first ground of objection on the failure of the prosecution to confront each Appellant with the statement of the other Appellants can only make sense and be relevant if the lower Court relied on the contents of the statement of one of the Appellants to convict any of the other Appellants. Where this is not the case, the objection is baseless. Counsel to the Appellants did not point to any part of the judgment wherein the lower Court relied on or made a finding against any one of the Appellants on the basis of the contents of the statement of another Appellant. This Court, too, has scoured through the judgment and cannot find where such an incident occurred. The lower Court made findings against each Appellant on the strength of that Appellant’s confessional statement. The first ground of the objection of Counsel was thus in the air, and was without substance, and it was not well-founded.

On the second ground of objection of “obtaining” of the statements, it is correct that there are case law authorities that suggest that the word “obtain” implies a demand and thus dissipates the effect of the cautionary words administered to a witness and questions the voluntariness of a statement made by an accused defendant – Nakunde Vs Jos Native Authority (1966) NNLR 52, State Vs Audu (1971) NNLR 91, State Vs Salawu (2011) 18 NWLR 580 and State Vs Rabiu (2013) 8 NWLR (Pt 1357) 585. In R Vs Nyinya Kwaghbo (1962) NNLR 4, Hurley CJ stated:
“Later the accused made a statement to the police. This also is inadmissible in evidence. The police constable who took the statement spoke of ‘obtaining’ it from the accused, and he says that ‘after caution’ the accused ‘agreed’ to make the statement. A statement must be voluntary if it is to be used in evidence against the person who makes it. When a policeman speaks of obtaining a statement from a suspect, there is a suggestion that he has been trying to get the statement out of the suspect or that he wanted the suspect to make it. It is none of the of a policeman’s business to get a suspect to make a statement; his sole duty is to give the suspect an opportunity of making one if he wishes, first making sure that the suspect understands that he need not say anything unless he wants to, and that he understands that anything he says may be used in evidence at his trial. If a policeman goes beyond that and sets out to ‘obtain’ a statement, it will appear very likely that he has let the suspect know that he wants him to make the statement. That is something that would tend to induce the suspect to speak, so that he would not be speaking of his own free will or voluntarily. Again, when a policeman tells me that the suspect ‘agreed’ to make a statement, that too suggests that he asked the suspect to make it, or let him see he wanted him to make it. In the evidence of the constable in this case, there were strong indications that the accused had been influenced to make the statement, so that it was not voluntary and should not be admitted in evidence. Since it appeared that the constable, though he said he cautioned the accused first, had in fact no idea of the proper way of cautioning a suspect or the words to be used in doing so, there was no satisfactory evidence that the statement was voluntary.”
The above said however, it is axiomatic that the meaning to be given to a particular word used in the course of a spoken statement made by a person must depend on the interpretation of the entire contents of the statement taken as a whole and the context in which the word was used in the statement. The word cannot be singled out for interpretation outside the context and the entire contents of the statement. In the instant case, the second prosecution witness never said he obtained statements from the Appellants. What he said was that his superior officer brought the Appellants to him to obtain their statements. There is a whole world of difference between what the second prosecution witness was told to do by his superior officer and what he did in recording the statements of the Appellants. It is what the witness did in recording the statements of the Appellants that is important in determining the voluntariness of the statements and not what he was told to do by his superior officer. The testimony of the second prosecution witness as to what he did read thus:
“… When they were brought to me, I informed them of the information and allegations of their involvement, I then cautioned them in Hausa language, which is the language they said they understand. They requested me to put down their statements in writing since they could not write…. They explained to me individually and separately their roles and I recorded same in Hausa language and read it to them. They each agreed that it was a true reflection of what they told me. Each of them thumb printed his statement …” (see page 4 of the records)
There is nothing in this testimony to suggest that the witness in any way compelled, demanded or cajoled the Appellants into making a statement. It is obvious that word “obtain” used by the second prosecution witness in the course of his testimony cannot be given the same meaning as was ascribed to the word “obtain” in the above quoted cases. The said case law authorities are inapplicable in the instant case because the facts of two cases must either be the same or at least similar before a decision in the earlier case can be used in a later case – Fawehinmi Vs Nigerian Bar Association (No 2) (1989) 2 NWLR (Pt 105) 558, Ndu Vs Onuaguluchi (1999) 11 NWLR (Pt 625) 152, Anaedobe Vs Ofodile (2001) 5 NWLR (Pt 706) 365, Abubakar Vs Nasumu (No 2) (2012) 17 NWLR (Pt 1330) 523. The second ground of objection of the Appellants to the admissibility of the confessional statement was thus also not well founded.

Now going to the ingredients of the substantive offence of armed robbery with which the Appellants were charged, Counsel to the Appellants conceded that there was adequate evidence before the lower Court to establish that a robbery took place on or about the 13th of July, 2006 along the Kwoi-Jos Highway in Jaba Local Government Area of Kaduna State and that the robbery was carried out with the use of dangerous weapons. Counsel stated that the only issue is whether there was cogent evidence before the Court that the Appellants participated in the said robbery. Now, as rightly stated by Counsel to the Respondent, it is settled law that the prosecution can prove the guilt of an accused defendant beyond reasonable doubt either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive – Mbang Vs State (2010) 7 NWLR (Pt 1194) 431, Ahmed Vs Nigerian Army (2011) 1 NWLR (Pt.1227) 89, Dele Vs State (2011) 1 NWLR (Pt 1229) 508, Ilodigwe Vs State (2012) 18 NWLR (Pt 1331) 1.

The Respondent led direct eye witness account of the armed robbery through the first prosecution witness and it tendered the confessional statements of the four Appellants before the lower Court in proof of the fact that the Appellants were participants in the armed robbery. Reading through the judgment on appeal before this court, the lower Court relied on the confessional statements and the testimonies of the first and third prosecution witnesses in finding the Appellants guilty. The question to be resolved in this appeal is – whether the evidence led through the three prosecution witnesses, inclusive of the confessional statements, were credible and cogent enough to discharge the onus on the Respondent to prove that the Appellants actively participated in the armed robbery in question.
The first prosecution witness was Ojile Emmanuel, a staff of the Nigeria Security and Civil Defence Corps, and he testified that on the 13th of July, 2006 he left Abuja, in the company of his boss, a Dr. Ade Abolarin, the Commandant General, for Jos for the official launch on anti-vandal motor cycles and that while he, his boss and a driver rode in Jeep dressed in uniform, five other persons, three in uniform and two in mufti, rode in the accompanying pilot vehicle. He stated that after about two hours drive and while they were along the Kwoi-Jos road, they heard gun shots immediately after negotiating a bend and they noticed that the road in front of them was barricaded by two vehicles. He said that the driver of the Jeep one Jonathan Osho, was shot in the head and he lost control of the Jeep which then collided with the pilot vehicle in front and skidded off the road into the bush until it was stopped by a tree. He testified that five men in police shirts and jeans trousers, all armed with AK 47 rifles, with some wearing with masks and other without, came and surrounded the Jeep and they ordered him to come down and they spoke mostly in Hausa and little pidgin English.

The witness testified that time of the incident was around 8am and that he came out of the Jeep as ordered and that the armed men were in very close range and, because he was in uniform, they inquired if he had a rifle and that he answered in the negative and he was asked to raise up his hands. He said that one of the five armed men requested for permission from the others to kill him but that the third Appellant, who was one of those not wearing a mask, said he should not be killed. He stated that all this while his boss who had also suffered a gunshot wound on his leg was in the Jeep but when the issue of his being killed was raised, his boss came down from the Jeep and the armed men immediately surrounded both of them and started saying “ina kudi?” He testified that his boss told the armed men to take all the money in the Jeep and spare their lives and that one of the masked armed men used the butt of his gun to break the back windscreen of the Jeep and took about N2 Million in a Ghana-must-go bag and that thereafter one of the armed men requested for permission to kill his boss but that again the third Appellant stopped the man. He said that they were asked to lie on the ground and the armed men shot three times into the air and one of them hit him with a very big stick on the head and one of the masked ones took his boss’ barrel (cap). He stated that they lost two men as a result of the shooting – the driver of the Jeep, one Jonathan Osho, and one other person, Alhassan Haruna, in the pilot vehicle and that the whole incident lasted about 30 minutes. Under cross-examination, the witness stated that the second Appellant was one of the five armed men not wearing a mask.

The testimony of the first prosecution witness was not disparaged or discredited under cross-examination. The second prosecution witness tendered the Hausa and the English versions of the confessional statement of the first Appellant as Exhibits 1 and 1A while the Hausa and the English versions of the confessional statement of the second Appellant were Exhibits 2 and 2A, the Hausa and the English versions of the confessional statement of the third Appellant were Exhibits 3 and 3A and the Hausa and the English versions of the confessional statement of the fourth Appellant were Exhibits 4 and 4A. The statement of the first Appellant in Exhibit 1A read, in part, thus:
“… All the guns used by my group was acquired during Yelwa Shandam crisis in Plateau State except one AK- 47 rifle which we got after killing a Policeman in a robbery operation at Kwoi Village. Two months ago we carried out a robbery operation along the Kwoi-Jos Road and attack some people in a Jeep who run into us with their convoy and sirens, I fired gunshots at the Jeep and killed one of the occupants and carried away the sum of Two Million Naira only (N2,000,000.00) from the Jeep. We shared three hundred thousand Naira each (N300,000.00) and we were nine in number (09) during the operation…”

The statement of the second Appellant in Exhibit 2A read, in part, thus:
“… I have participated in the gangs robbery operation for about four (04) times. It was in one of such robbery along Kwoi-Jos road about two months ago that we attacked some people in a Jeep and robbed them. Sule was our gang leader who normally led our operations and it was Sule who shot one of the occupants of the Jeep where we carted away the sum of Two Million Naira (N2,000,000.00) from the owner of the Jeep. After the operation I was given the sum of Three Hundred Thousand Naira only (N300,000.00) as my share. The operation was not calculated but just a coincidence.”

The statement of the third Appellant in Exhibit 3A read, in part, thus:
“We got our weapons during the communal clashes in Yelwa Shandam and hid them after the crisis. The leader of our gang Sule is the one providing us with ammunition we are using for the armed robbery. Almost two months ago during one of our operation along Kwoi road, a man with his entourage blaring siren in one vehicle together with a Jeep car ran into us suddenly, and instantly we opened fire on them and carted away the sum of Two Million Naira (N2,000,000.00). After the operation, I was given the sum of Three Hundred Thousand only (N300,000.00) as my share. Also, we don’t have any prior knowledge that the man is going to pass the road within the area we operated along new Kaduna-Jos Road near Kwoi Village, it was just a coincidence.”

The statement of the fourth Appellant in Exhibit 4A read, in part thus:
“There was a time almost a month now I cannot precisely remember the date, Sule and his friends met me and requested me to convey them to a place near Kwoi where they conducted arm robbery operation. After the operation they paid me Ten Thousand Naira only (N10,000.00). Similarly, for the second time within this year, on 13/7/06 they also requested me to take them to the area I took them before near Kwoi Village for the same mission and we make a deal to pay me thirty thousand naira only (N30,000.00) after the operation. On reaching the area they removed their weapons in my presence out of the sack and conducted their operation. In the course of the operation, they killed two people and carted away the sum of Two Million Naira only (N2,000,000.00) from one man who came in a Jeep with a convoy blaring siren. Immediately after the operation I convey them back home around morning hours.”

The records of appeal shows that none of the Appellants and/or their Counsel raised any objection to the admissibility of the confessional statements and none of them and/or their Counsel protested that they did not make the statements at the time they were tendered by the second prosecution witness. It is a settled principle in criminal litigation that where a confessional statement of an accused defendant is tendered in evidence without any objection or protest from the accused defendant or his Counsel, the confessional statement will be deemed to have been made voluntarily and its contents will be deemed true – Osung Vs State (2012) 18 NWLR (Pt 1332) 256, Ajibade Vs State (2013) 6 NWLR (Pt 1349) 25 at 44 E-H, Stephen Vs State (2013) 8 NWLR (Pt 1355) 153 at 173 D-H.

Counsel to the Appellants seemed to suggest that the Appellants retracted the confessional statement in the course of the trial proceedings. The records of appeal show that at no time during the cross-examination of the second prosecution witness did the Counsel to the Appellants ask any question on the confessional statements or put the witness to task on whether or not the Appellants made the statements. The law is that, in such circumstances, the testimony of the witness will be believed and any subsequent retraction of the confessional statement by the accused defendant is to be treated as an afterthought – Oforlete Vs State (2000) 12 NWLR (Pt 681) 415, Iwunze Vs Federal Republic of Nigeria (2013) 1 NWLR (Pt.1334) 119, Chukwu Vs State (2013) 4 NWLR (Pt.1343) 1, Egwumi Vs State (2013) All FWLR (Pt 678) 824. This point was succinctly made by Belgore, JSC (as he then was) in Okasi Vs State (1989) 2 SCNJ 183 at 188-189 thus:
“In all criminal trials the defence must challenge all the evidence it wishes to dispute by cross-examination. This is the only way to attack any evidence lawfully admitted at trial. For when evidence is primary, admissible in the sense that it is not hearsay or 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 fact disputed, for it is late at the close of the case to attempt to negative what was left unchallenged; it is even an exercise in futility to demolish it on appeal and it is like building a castle in the air to find fault in such evidence in this court.”

Additionally, it is settled law that during trial, an accused defendant who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true by showing any of the following (i) that he did not in fact make any such statement as presented; or (ii) that he was not correctly recorded; or (iii) that he was unsettled in mind at the time he made the statement; or (iv) that he was induced to make the statement – Hassan Vs State (2001) 15 NWLR (Pt 735) 184, Kazeem Vs State (2009) WRN 43 and Osetola Vs State (2012) 17 NWLR (Pt.1329) 251. The Appellants did not raise and/or establish any of these situations in their evidence before the lower Court. All that the Appellants did in their testimony was to give evidence inconsistent with the contents of the confessional statement. Only the third Appellant gave evidence in passing under cross-examination that he did not make a statement. The law is that where an accused defendant does not challenge the making of his confessional statement but merely gives oral evidence which is inconsistent with or contradicts the contents of the statement, the oral evidence should be treated as unreliable and liable to be rejected and the contents of the confessional statement upheld unless a satisfactory explanation of the inconsistency is proffered – Gabriel Vs State (1989) 5 NWLR (Pt 122) 457, Ogoala Vs State (1991) 2 NWLR (Pt 175) 509, Egboghonome Vs State (1993) 7 NWLR (Pt 306) 383, Oladotun Vs State (2010) 15 NWLR (Pt 1217) 490, Federal Republic of Nigeria Vs Iweka (2013) 3 NWLR (Pt 1341) 285, Osuagwu Vs State supra. The Appellants did not offer any explanation for the inconsistency, in the instant case. There was no retraction of the confessional statements by the Appellants to warrant the need for the lower Court to look for corroborative evidence – Osung Vs State supra.

Going further and assuming that there was indeed a retraction of the confessional statements by the Appellants, it is settled law that a confession does not become inadmissible merely because a defendant denies having made it. The denial of a statement made by a defendant to the police is only an issue of fact to be decided in the judgment and it is not an issue which affects admissibility of the statement – Akpa Vs State (2008) 14 NWLR (Pt 1106) 72, Sule vs State (2009) 17 NWLR (Pt 1169) 33, Nwokearu Vs State (2010) 15 NWLR (Pt.1215) 1 and Galadima Vs State (2012) 18 NWLR (Pt 1333) 610.

What is required is that before the court would believe and act on such a retracted confession it should subject the confessional statement to the following tests:
i. whether there is anything outside the confession which shows that it may be true;
ii, whether it is corroborated in any way;
iii. whether the relevant statements of facts made in it are mostly true as far as they can be tested;
iv. whether the defendant had the opportunity of committing the offence;
v. whether the confession is possible; and
vi. whether the alleged confession is consistent with other facts that have been ascertained and established.
See the cases of Osuagwu Vs State (2009) 1 NWLR (Pt 1123) 523, Kabiru Vs Attorney General, Ogun State (2009) 5 NWLR (Pt 1134) 209, Nwokearu Vs State supra and Galadima Vs State supra.

It is beyond doubt that the testimony of the first prosecution witness provided adequate corroboration for the contents of the confessional statements of the Appellants. Also, the third prosecution witness, one Samuel Adindu Okata, an Assistant Director with the Department of State Services, Abuja, gave evidence of how the four Appellants were arrested and of how the Appellants led the officers of the Department of State Services to the bush along Kwoi-Jos Road in Kaduna where they kept their arms and ammunition and of how they dug out a bag containing the arms and ammunitions and that they took the Appellants along with the exhibits to the National Headquarters of Department of State Services. He testified that at the Headquarters, the Appellants were cautioned and told that they were not obliged to say anything and that anything they said would be used in evidence against them and that the Appellants voluntarily admitted and confessed that they attacked the Commandant General of the Nigeria Civil Defence Corps and stole the sum of N2 Million from him after shooting and killing the driver and orderly. The witness stated under cross-examination that the Appellants made the confession during their oral interview. The testimony of the witness was not disparaged or discredited under cross-examination. This evidence is tantamount to evidence discovered by an investigating police officer in the course of investigation and it was admissible – Oladejo Vs State (1994) 6 NWLR (Pt 348) 101. The evidence also corroborates the contents of the confessional statements of the Appellants.

The confessional statements of the Appellants were deserving of full probative value and they were freely and voluntarily made, unambiguous, true, positive and direct with reference to the offence of armed robbery that was brought against the Appellants.

The law is that a conviction can be sustained solely on such confessional statements, even where they are retracted by the accused defendants – Solola Vs State (2005) 11 NWLR (Pt 937) 460, Arogundade Vs State (2009) 6 NWLR (Pt 1136) 165, Oseni Vs State (2011) 6 NWLR (Pt 1242) 138, Lasisi Vs State (2013) 9 NWLR (Pt 1358) 74. It must be noted that the Counsel to the Appellants made copious submissions on the failure of the Respondent to conduct an identification parade to ascertain that the Appellants were indeed the persons that the first prosecution witness said he saw and identified as participants in the armed robbery. It settled that an identification parade is completely unnecessary, and would amount to a complete waste of time, where an accused defendant has confessed to the commission of the crime, as in the instant case – Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360, Fatai Vs State (2013) 10 NWLR (Pt 1361) 1, Sadiku Vs State (2013) 11 NWLR (Pt 1364) 191. The entire submissions of Counsel on the issue of identification parade were thus not well conceived.

This Court finds that the Respondent led cogent and credible evidence before the lower Court to show that it was the Appellants that carried out the armed robbery for which they were charged. In conclusion, this Court finds and holds that the Appellants have not presented it with any reason to tamper with the decision of the lower Court. This appeal lacks merit and it is dismissed. The judgment of the High Court of Kaduna Sate in Suit No KDH/KAD/105C/2006 delivered by Honourable Justice Gideon Isa Kurada on the 27th of June, 2008 and the sentences passed on the Appellants therein are hereby affirmed. These shall be the orders of this Court.

DALHATU ADAMU J.C.A.: I have an opportunity to go through the draft of the lead judgment delivered by H.A.O. Abiru JCA in this appeal. I am in full agreement with his reasons and the conclusion reached in the lead judgment that the appeal lacks merit and it should be dismissed. I accordingly hereby also dismiss it and affirm the judgment of the High court Kaduna State delivered by Honourable Justice Gideon Isa Kurada on 27/6/2008 and the sentences passed on the appellants.

ITA GEORGE MBABA, J.C.A.: I have had the advantage of reading, before now, the draft of the lead judgment, just delivered by my learned brother, ABIRU, JCA and I agree with his reasoning and conclusion, completely.

I have to add that by Law, even when the Accused person denies or tries to deny the voluntariness of his confessional statement, it is not less so, where the court finds it to be direct, positive and voluntary disclosure of facts, personal to the Accused person, and which facts are consistent with the other evidence adduced in the case, suggesting the accused had the opportunity to commit the offence or take part in it. Eke vs. State (2011) 3 NWLR (Pt.1235) 589; Blessing vs. FRN (2013) 12 WRN 36 at 67.

In the case of Oseni vs The State (2012) LPELR SC.14/2011 (2012) 37 WRN 1; (2012) NWLR (Pt. 1293) 315 held 8, the Supreme said:
“Retraction of a confession does not ipso facto render the confession inadmissible. A confession does not become inadmissible merely because the accused person denies having made it. A confession contained in a statement made to the police by a person under arrest is not to be treated differently from any other confession. The fact that the accused person took the earliest opportunity to deny having made the statement may lend weight to his denial, but it is not in itself a reason for ignoring the statement. [Itule v. Queen (1961) 2 SCNLR 183; R v. Sapele (1952) 2 FSC 24 referred to.] (Pp. 372-373, paras. H-C) Per NGWUTA J.S.C. at page 373 paras. C-D.
“The appellant took the earliest opportunity when the statement was offered in evidence to deny having made it. A mere denial without more, even at the earliest opportunity, cannot, on the facts of this case, lend weight to the denial. The denial is bare statement bereft of any supporting fact and standing only on the ipse dixit of the appellant. As stated earlier, the statement was not challenged on ground of involuntariness and the trial court rightly declined the invitation to conduct trial within trial.”

It is obvious that Exhibits 1, 1A, 2, 2A, 3, 3A, 4 and 4A were substantially corroborated by the evidence of PW1, who witnessed the robbery, as a victim. Having earlier confessed to the Crime, it is a mark of unrepentance and further hardness for Appellants to try to disown their confessional statements, which they never raised any objection to at the time of tendering.

In the case of Usman Salahudeen Vs. The State CA/K/1/C/2012, an unreported decision of this Court delivered on 16/9/2013; we held at page 27, thus:
“It has been stated, several times, that a confessional statement is the best and strongest evidence of guilt, as by it the Accused person surrenders himself and closes every door of defense against himself. See the case of YUSUF VS. THE STATE (2012) LPELR -7878 (CA); see also OJI VS. FRN (2013) ALL FWLR (Pt. 668) 920, where we held, relying on Tobi JSC in the case of Akpa vs. State (2008) ALL FWLR (Pt. 420) 644-
“A confession is the strongest evidence of guilt on the part of accused, stronger than the evidence of an eye witness, because the evidence, borrowing the daily axiom, comes out from the mouth of the horse, who is the accused.” See also Omojuh vs FRN (2008) ALL FWLR (Pt.415) 1656.

For this reason and the more elaborate reasons in the lead judgment, I too dismiss the appeal and abide by the Consequential Orders in the lead judgment.

Appearances

Tajudeen Oladoja with Murtala AbdulRasheed, E Ulebe
M. Rashid, Isyaku AbdulRahaman & M.B., Yusuf For Appellant

AND

Sakinatu Hassan Idris For Respondent