SULE v. KANO STATE (2022)

SULE v. KANO STATE

(2022)LCN/16400(CA)

In The Court of Appeal

(KANO JUDICIAL DIVISION)

On Friday, May 20, 2022

CA/K/407/C/2019

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

GAMBO SULE APPELANT(S)

And

KANO STATE RESPONDENT(S)

RATIO

THE POSITION OF LAW ON THE APPROPRAITE TIME TO RAISE OBJECTION AGAINST ADMISSION OF A CONFESSIONAL STATEMENT

Of course, in criminal trials, the appropriate time to raise objection against admission of a confessional statement, is at the tendering of the said statement by the prosecution, and the Accused person, or his Counsel, is expected to raise such objection, timeously, to enable the trial Court consider the need to conduct a trial-within-trial. See the case of Ofordike Vs The State (2019) LPELR–46411 SC, where the Supreme Court held:
“The learned Counsel for the Respondent made it clear that denial of making a confessional statement is not synonymous with alleging that it was involuntarily made which I agree totally. This much was held by the Court below in its judgment as found on page 139 of the record as follows:- “In this appeal under consideration, it is clear on record that the appellant did not through his counsel and during the trial, particularly at the point when the prosecution applied to tender the said confessional statement object to its admissibility on the grounds that it was involuntarily made or obtained from him with coercion or as a result of threat to his life or promise of any advantage. In view of the foregoing, a trial within trial is unnecessary and the trial Court was right in its judgment.” I agree entirely with the position taken by the Court below because, as I have stated above, a trial within trial is necessary where the voluntariness of the making of a confessional statement by an accused person is in issue or raised by an accused person or his counsel. Where an accused person admits making the statement but contends or asserts that he did not make it voluntarily, but under duress or some other alleged influence, then a trial with trial will be conducted. Where however as in this case, the objection to the admissibility of accused confessional statement is based on the grounds that it was not read over to him and that he did not make it, the statement is treated as a voluntary statement and is admissible without the Court holding a trial within trial which is necessary only where the issue of involuntariness is raised. See Onyenye v The State (2012) 15 NWLR (pt 1324) 586 at 619 paragraphs A-C where this Court set out the circumstances and effect of confessional statements obtained by duress and those merely retracted as follows:- 1. Where the accused has clearly expressed his ordeal in the process of obtaining the statement accredited to him in effect that it was obtained by force, tricks or undue influence or any non-recognizable legal ways, there would be need for a trial within trial. 2. Where the accused retracted his confessional statement on the ground that it was not read to him before he signed it or that he never made it at all, the requirement of a trial within trial is not applicable…” Per OKORO, JSC
Only recently this Court had opportunity to re-state this principle of law, again, in the case of Usman Vs The State (2022) LPELR–56762 (CA), when we said:
“Only recently, we had course to restate the law in the case Kabiru Bala v The State (2022) LPELR-56936, on confessional statement as the best evidence to work with and to convict on, once the statement is adjudged credible and made voluntarily by the accused person. We held, thus: “By law, a confessional statement is enough evidence, and, in fact the best evidence, to establish commission of offence, coming from the accused person himself where the confession is adjudged voluntarily made. See the case of Uhara Vs The State (2021) LPELR- 55512 (CA): “We have held several times that a confessional statement alone is a conclusive and sufficient evidence to establish conviction, and, in fact, the best evidence of the commission of the offence, coming directly from the accused person himself, and closing every door of defence against him, except where the issue/defence of provocation can be invoked. See FRN Vs Iweka (2011) LPELR-9350 SC, where it was held that confessional statement is the best evidence of proof of crime and can be accepted as satisfactory evidence, upon which alone the accused can be convicted. See also Ogoala Vs The State (1991) 2 NWLR (Pt.175) 509 at 534.” PER MBABA, J.C.A.

WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED SOLELY BY A CONFESSIONAL STATEMENT

By law, a confessional statement is sufficient to lie a conviction, even if retracted by Appellant, once the Court find substance in it, and same is corroborated by other pieces of evidence. The evidence of the eye witness account (PW1 and PW6) were strong to corroborate the confession of Appellant to robbery against the Appellant and were even alone, capable of establishing the offence, in my opinion.
See the case of Hussein Vs The State (2022) LPELR–57021 (CA), where we held:
“Only recently, we had course to restate the law in the case Kabiru Bala v The State (2022) LPELR-56936, on confessional statement as the best evidence to work with and to convict on, once the statement is adjudged credible and made voluntarily by the accused person. We held, thus: “By law, a confessional statement is enough evidence, and, in fact the best evidence, to establish commission of offence, coming from the accused person himself where the confession is adjudged voluntarily made. See the case of Uhara Vs The State (2021) LPELR- 55512 (CA): “We have held several times that a confessional statement alone is a conclusive and sufficient evidence to establish conviction, and, in fact, the best evidence of the commission of the offence, coming directly from the accused person himself, and closing every door of defence against him, except where the issue/defence of provocation can be invoked. See FRN Vs Iweka (2011) LPELR-9350 SC, where it was held that confessional statement is the best evidence of proof of crime and can be accepted as satisfactory evidence, upon which alone the accused can be convicted. See also Ogoala Vs The State (1991) 2 NWLR (Pt.175) 509 at 534.”PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the decision of Kano State High Court in Charge No. K/57C/2016, delivered on 6th March, 2019 by Hon. Justice A. T. Badamasi, whereof the learned trial Judge convicted Appellant, along with other accused persons, and sentenced him to death for offence of conspiracy and armed robbery, under Section 97 of the Penal Code and Section 1(2) (a) of the Robbery and Fire-Arms (Special Process) Act, LFN 2004, respectively.

At the trial Court, Appellant, as 1st Accused Person, was charged (together with the other accused persons) as follows:
1ST HEAD OF CHARGE
That you Gambo Sule of Fagge quarters, Fagge Local Government Area of Kano State, Ahmad Salusu of Shahuci Quarters, Kano Municipal Local Government Area of Kano State, Aminu Auwalu of Gwammaja Quarters, Dala Local Government Area of Kano State, Ibrahim Ali of Gwammaja Quarters Dala Local Government Area of Kano State, Najib Kabiru of Fagge ‘B’ Quarters, Fagge Local Government Area of Kano State and one Ibrahim Bagobiri, who is now at large, on or about 6th day of December, 2013, while armed with dangerous weapons, agreed to do an illegal act, to wit; attacked and robbed the occupants of the house of one Abba Ashiru, lying and situate at Kafar Ruwa Quarters, Dala Local Government Area of Kano State, within Kano jurisdiction of this Court and that the same act was done in pursuance of an agreement and that you thereby committed an offence, contrary to Section 96 of the Penal Code and punishable under Section 97 of the Penal Code, Laws of Kano State.
2ND HEAD OF THE CHARGE:
That you Gambo Sule of Fagge quarters, Fagge Local Government Area of Kano State, Ahmad Salusu of Shahuci Quarters, Kano Municipal Local Government Area of Kano State, Aminu Auwalu of Gwammaja Quarters, Dala Local Government Area of Kano State, Ibrahim Ali of Gwammaja Quarters Dala Local Government Area of Kano State, Najib Kabiru of Fagge ‘B’ Quarters, Fagge Local Government Area of Kano State and Ibrahim Bagobiri, who is now at large, on or about 6th day of December, 2013, while armed with dangerous weapons i.e. sharp cutlass, knife and sticks agreed to do an illegal act to wit; attacked and robbed the occupant of the house of one Garzali Sani situated at Goron Dutse Quarters, Dala Local Government Area of Kano within the jurisdiction of this Court, and that you thereby committed an offence contrary to Section 96 of the Panel Code and punishable under Section 97 of the Penal Code Laws of Kano State.
3RD HEAD OF THE CHARGE:
That you Gambo Sule of Fagge quarters, Fagge Local Government Area of Kano State, Ahmad Salusu of Shahuci Quarters, Kano Municipal Local Government Area of Kano State, Aminu Auwalu of Gwammaja Quarters, Dala Local Government Area of Kano State, Ibrahim Ali of Gwammaja Quarters Dala Local Government Area of Kano State, Najib Kabiru of Fagge ‘B’ Quarters, Fagge Local Government Area of Kano State and Ibrahim Bagobiri, who is now at large, on or about 6th day of December, 2013 at Kafar Ruwa Quarters, Dala Local Government Area of Kano State, within Kano jurisdiction of this Honourable Court, committed robbery in that you did an act to wit; attacked and robbed one Abba Ashiru thereby causing multiple stab wounds on him and the occupants of his house situated at Kafar Ruwa Quarters, Dala Local Government Area of Kano State, the sum of Two Hundred and Forty Seven Thousand Naira only (247,000.00) and other valuable properties and at the time of the robbery you were armed with offensive weapons to wit: sharp cutlass, knife and sticks, with which you killed one Musa Muhammad of Kofar Ruwa Quarters, Dala Local Government Area of Kano State by stabbing him with sharp cutlass on his stomach and died instantly and you thereby committed an offence contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation 2004.
4th HEAD OF THE CHARGE
That you Gambo Sule of Fagge quarters, Fagge Local Government Area of Kano State, Ahmad Salusu of Shahuci Quarters, Kano Municipal Local Government Area of Kano State, Aminu Auwalu of Gwammaja Quarters, Dala Local Government Area of Kano State, Ibrahim Ali of Gwammaja Quarters Dala Local Government Area of Kano State, Najib Kabiru of Fagge ‘B’ Quarters, Fagge Local Government Area of Kano State and Ibrahim Bagobiri, who is now at large, on or about 6th day of December, 2013 at Goron Dutse Quarters, Dala Local Government Area of Kano State within Kano jurisdiction of this Honourable Court, committed robbery in that you did an act to wit; attacked and robbed one Garzali Sani of Goron Dutse Quarters, Dala Local Government Area of Kano State, the sum of One Hundred and Sixty Thousand Naira (N160,000.00) and four different types of GSM Handsets; and at the time of the robbery you were armed with offensive weapons to wit: sharp cutlass, knife and sticks, with which you threatened him and the said occupants of his house and thereby committed an offence punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation 2004.

Appellant, like the other accused persons, had pleaded NOT GUILTY to the charge, when they were arraigned on 14/7/2016, upon the charge being read to them, and interpreted in Hausa Language.

After hearing the case and considering the evidence and addresses of Counsel, the learned trial Judge felt satisfied with the case of the prosecution and convicted the Accused persons. The Court said (among other things):
“…I had earlier in the course of this judgment evaluated the confessional statement of the 1st accused person and came to the conclusion that it deserved full weight, as there are independent pieces of evidence which confirm the content of the said confessional statement. The retraction of the 1st accused or his mere denial of involvement in the commission of the alleged offence, holds no water and I so hold.
Equally the denial of his name not (sic) being Gambo Sule, is of no moment, because he was fixed at the 2 scenes of crime by PW1 and PW6. Similarly, the defence of the 2nd accused is similar to that of the 1st accused. He claims to be Idris Uba and not Ahmed Salisu as shown on the charge sheet head…” (See page 290 of the Records of Appeal)

On pages 293-294 of the Records, the Court said:
“From what has been adduced before me, oral and documentary, I hold that the prosecution has proved its case against all the accused person (sic) beyond reasonable doubt. The sole issue for determination is therefore resolved in favour of the prosecution. Accordingly, the accused persons are hereby convicted as charged.”

Appellant, being dissatisfied, filed this appeal, as per the Notice of Appeal, on pages 296 to 300 of the Records of Appeal (and initially marked as Appeal No. K/77CA/19 by the lower Court), with three (3) Grounds of Appeal. Appellant filed his brief of arguments on 5/8/2019 and donated four (4) Issues for the determination of the appeal as follows:
(1) Whether the lower Court was right in relying on the alleged confessional statement, Exhibit E & K of the Appellant in convicting despite the doubts evidencing on the untruthfulness and indirectness of the Exhibits (Arising from Ground two of the Notice of Appeal)
(2) Whether the lower Court was right when it relied on the alleged confessional statement, Exhibits E and K, to establish the offence of conspiracy as proved and established, without the elements of the offence being proved by the prosecution before the lower Court? (Grounds two and three one (sic) of the Notice of Appeal)
(3) Whether the evidence of PW1 and PW6 was sufficient, valid and reliable for the lower Court to rely and depend on in convicting the Appellant, without the lower Court considering the defence of the Appellant before conviction? (Arising from Ground one and three of the Notice of Appeal)
(4) Whether the prosecution proved his (sic) case (armed robbery and conspiracy) beyond reasonable doubt against the Appellant to warrant the conviction of the Appellant? (Arising from ground one and three of the Notice of Appeal)

The Respondent’s Brief of arguments was filed on 14/2/2022, and was deemed duly filed 5/4/2022 (the date this appeal was heard). The Respondent faulted the 4 Issues formulated by the Appellant, from 3 grounds of appeal, saying that they are defective. Counsel for the Respondent said that on no account should the grounds of appeal be less that the issues for determination of appeal. He argued that for grounds of appeal to be competent, they must be related to the decision appealed against, and should constitute a challenge to the ratio of the decision, on appeal.

Finally, Respondent’s Counsel said only the issue 4 by Appellant was competent, and he adopted the same with modification, as follows:
“Whether having regards to the totality of the evidence adduced at the trial, the four heads of charge of criminal conspiracy and armed robbery, preferred against the Accused/Appellant, has (sic) been proved beyond reasonable doubt by the prosecution”

PROLIFERATION OF ISSUES
Appellant’s Counsel appears not to be conversant with how appeals are argued in this Court, and the proper way of relating issues for determination of appeals to grounds of appeal; that by law, issues for determination of appeal cannot be more that the grounds of appeal, and that a single ground of appeal cannot be split to generate two or more issues for determination of appeal. See the case Vinylon Footwear Industry Ltd Vs Saidu Mohammed Dabi (2021) LPELR – 56142 (CA), where this Court held:
“Appellant’s Counsel had distilled Appellant’s Issue 2 from grounds 2, 3, 4, 6 and 7 of the appeal, but, surprisingly, and erroneously, distilled the Issue 4 from the same grounds 6 and 7 of the appeal. That cannot be done; having earlier used the said grounds 6 and 7 (with other grounds) to distill Issue 2, the said grounds ceased to be available to give birth to any other Issue for the determination of the appeal. See the recent decision of this Court Union Bank of Nigeria Plc Vs Anthony Ejike Mbaka & Ors: CA/E/296/2017, delivered on 29/10/2021, where we held: “Appellant’s Counsel goofed, again, when he distilled the Issue 2 from grounds 1, 4 and 6 of the Amended Notice of Appeal, only to also distill the Issue 4 from the same ground 6! And, while arguing the said Issue 2, Appellant’s Counsel, in the Brief, claimed to have distilled same Issue 2 from grounds 1 and 2 of the Amended Notice of Appeal!… the Issue 3, which would have been thought saved or spared to host this appeal, cannot also be available to argue the appeal, as Appellant, again, erred when its Counsel stated that Issue 3 derived from grounds 4 & 5 of the Appeal!… Appeal can only be argued on Issue or Issues, donated for the determination of the appeal, and the Issues must be properly related to the grounds of the appeal, which must, in turn, flow from or relate to the ratio decidendi of the judgment, appeal against. That constitutes the trite principles of law, governing argument of appeals in this Court and in the Apex Court. See the cases of Sheidu Vs The State (2014) LPELR-23018 (SC); (2014) 15 NWLR (Pt.1429) 1; Ukwuoma Vs Okafor (2016) LPELR-41505 (CA); Fajebe & Anor Vs Opanuga (2019) LPELR-46348 (SC); North West Petroleum & Gas Co. Ltd & Anor Vs Prince Chigozie Iloh & Ors (2021) LPELR-55509 (CA).” Of course, the law is trite, that though two or more grounds of appeal can be combined to generate an Issue for determination of appeal, one ground of appeal cannot be split to donate different issues for determination of appeal. See again the case of North West Petroleum & Gas Co. Ltd & Anor Vs Iloh & Ors (2021) LPELR-55509 CA: “… he (Counsel) split many of the grounds of appeal to donate several issues for determination, in a manner quite offensive to the rules and procedure for arguing appeals. The law is trite, that whereas Appellant can combine two or more grounds of appeal to generate an issue for the determination of appeal, he cannot split a ground of appeal to raise several issues for determination of the appeal. That is to say, that the moment an Appellant has distilled an issue from a given ground(s) of appeal, he cannot, thereafter, use the said (used) ground(s) of appeal to generate another issue for the determination of the appeal, as that would amount to the proliferation of issues. See the case of A.G. Imo State Vs Imo Rubber Estate Ltd and Ors (2019) LPELR-47579 (CA); Phillips Vs Eba Odan Commercial & Industrial Co. Ltd (2012) LPELR-9718 (SC); Ugo Vs Obiekwe (1989) 2 SC (Pt. 11) 41. Of course, it is trite, that once Appellant has distilled an issue for determination of appeal from a given ground(s) of appeal, that ground (or grounds) of appeal ceases to be available to donate another issue for determination of the appeal. In that case of A. G. Imo State Vs Imo Rubber Estate Ltd & Ors (supra).”
From the above decision, it is clear that Appellant’s Counsel blundered greatly, when he distilled both the Issues 1 and 2 from ground 2 of the appeal and further blundered by again joining the same ground 2, with ground 3, to distill the Issue 2, while also joining the ground 3 with ground 1 to distill Issues 3 and 4!
See also Nabegu Co. Nig. Ltd Vs AMCON & Ors (2022) LPELR–57294 CA, where it was held:
“It is also the law that Appellant cannot split a ground of appeal, to generate two or more issues for determination, and cannot lump many issues for determination, together, purporting same to distill from several grounds of appeal, also lumped together. Appellant has to, clearly, specify which issue is distilled from which ground of appeal, before he can proceed to argue the issues, either singly or together. In the recent case of North West Petroleum and Gas Company Ltd & Anor Vs Prince Chigozie Iloh & Ors (2021) LPELR-55509 CA, this Court held as follows, on proliferation of issues: “…he (Counsel) split many of the grounds of appeal to donate several issues for determination, in a manner quite offensive to the rules and procedure for arguing appeals. The law is trite, that whereas Appellant can combine two or more grounds of appeal to generate an issue for the determination of appeal, he cannot split a ground of appeal to raise several issues for determination of the appeal. That is to say, that the moment an Appellant has distilled an issue from a given ground(s) of appeal, he cannot, thereafter, use the said (used) ground(s) of appeal to generate another issue for the determination of the appeal, as that would amount to the proliferation of issues. See the case of A.G. Imo State Vs Imo Rubber Estate Ltd and (Ors) (2019) LPELR-47579 (CA); Phillips Vs Eba Odan Commercial & Industrial Co. Ltd (2012) LPELR-9718 (SC); Ugo Vs Obiekwe (1989) 2 SC (Pt. 11) 41. Of course, it is trite, that once Appellant has distilled an issue for determination of appeal from a given ground(s) of appeal, that ground (or grounds) of appeal ceases to be available to donate another issue for determination of the appeal.

In the circumstance, I think the Issues 2, 3 and 4 of this appeal should be struck out, being infected by the proliferation, highlighted above. I shall, however, save the issue one, as the same was the first to be generated from, the ground 2. Of course, after distilling the said issue from the ground 2, the said ground had been used up, and there was nothing remaining to generate another issue.

I therefore consider the Appeal on Issue 1, alone:
Whether the lower Court was right in relying on alleged confessional statement (Exhibit E & K) in convicting the Appellant, despite doubt on the truthfulness and directness of the Exhibits.
Arguing that Issue, Appellant’s Counsel, Abbas Haladu, Esq (who settled the Brief) said that, for confessional statement to be relevant, it has to be made voluntarily and must be direct, positive and clear, from the accused person. Counsel relied on the case of Adeleke Vs State (2012) ALL FWLR (Pt 606) 575, on the test which a confessional statement must be subjected to, namely:
(1) Whether there is anything outside the confessional statement, to show that it is true.
(2) Whether it is corroborated.
(3) Whether the relevant statements made in it are facts, as far as they can be tested.
(4) Whether his confession is possible
(5) Whether the accused person was one who had the opportunity of committing the crime.
(6) Whether the confession is consistent with other facts which have been ascertained and have been proved.

Counsel argued that the confessional statement (Exhibits E and K), which the trial Court relied on, did not pass the above tests in the case of Adeleke Vs State (supra); he said that there was nothing in/outside the confessional statement, to show it was true, at all; he said that there were undisputed facts that Appellant did not make the confessional statement – namely:
(1) That the purported signatures of Appellant on Exhibits E & K are/were not the same.
(2) That Appellant had told the Court under examination in chief, that the confessional statement he was given to sign, he thumbs printed on it, but the one tendered, was signed, and same was not his!
(3) That the handwriting in Exhibit E and K are not of the same maker, that a police officer made and signed the alleged confessional statement.

Counsel also said that there was no corroboration, at all, of the confessional statement, and relied on the case of Nwambe Vs The State (1995) 3 NWLR (Pt 384) 385. He added that the confession was not possible; that Appellant was arrested and taken into custody on 20/11/2013 while the offence was committed on 6/12/13; that the offence was committed on 6/12/13, as per the charge sheet, and Appellant allegedly made the statement Exhibit E on 7/12/13, and Exhibit K on 16/12/2013! Counsel also alleged inaccuracy/improper identification of the name of the Appellants; that Appellant had said his name was Ibrahim Sulaiman (not Gambo Sule) given to him by the Police). Counsel said that Exhibits E and K were (purportedly) made by Gambo Sule, not Appellant (Ibrahim Sulaiman). He argued that the Appellant was beaten and forced to thumb print the confessional statement and he sustained injuries as a result of the beatings and was rushed to hospital, but the prosecution failed to produce the evidence of his admission in the hospital at the trial. Counsel also said that the person who interpreted the statement (Exhibit K) was not called as a witness and so the statement was inadmissible. He relied on FRN Vs Usman (2012) ALL FWLR (Pt 632) 1642.

Counsel argued that there was need to seek evidence outside the confessional statement, to corroborate the alleged confessional statement, as Appellant had denied the said confessional statement. He relied on Bassey Vs State (2012) ALL FWLR (Pt 633) 1820.

Appellant’s Counsel asserted that the Exhibits E & K did not pass through the first step of the basic fundamentals of a valid statement, in that the cautionary words were neither made by a Police officer and, nor signed by the Police, but by the alleged makers of the Exhibits. Counsel said that there was no evidence, whatsoever, that Appellant made the confessional statement, nor give directives to any police officer to make his statement for him, but that the only possible thing that was done by the police was to make a statement and forcefully made him (the appellant) to thumb print, that he committed the offences; he said that the lower Court was in error, when it fully relied on the alleged confessional statement.” (See pages 12-13 of the Appellant’s Brief)

Responding, the Respondent’s Counsel, Bashir Sale Esq, (Ag Director and Secretary Kano State Law Reform Commission) said that Exhibits E and K (confessional statement of Appellant) had indicated clearly that series of robberies had occurred on 6/12/2013; he said that the testimonies of PW1 and PW6 were not controverted, under cross-examination, and it is trite law, that unchallenged evidence is acceptable by the Court. Counsel submitted that, from the unchallenged evidence of PW1 and PW6, and the contents of Exhibits E & K, the ingredients of the offence had been established. Counsel said that the contents of Exhibits E and K, clearly, indicated a graphic, vivid account on how Appellant conspired with other co-convicts and robbed PW1 and PW6.

Counsel said that Appellant had, laboriously, devoted enormous pages of his brief of argument on the Exhibits E and K to fault their admission. Counsel argued that the documents were admitted, properly, and utilized by the trial Court; that by law, once a confessional statement is admitted in evidence, it becomes part of the evidence, and part of the case of the prosecution, which the Court has to consider Egboghonome Vs State (1993) NWLR (Pt 306).

Counsel said that all the hue and cry of Appellant’s Counsel about the Exhibits E and K, amounted to nothing, as the documents were admitted, without any objection by Appellant at the trial. He relied on the case of Archibong Vs State (2006) 5 SC (Pt 11) 1 at 15, to say that objection to admissibility of a document must be made, when the document is tendered; that where no objection is raised, the document will be admitted, and the opposing party cannot complain about the admission of the document, on appeal.

On issue of signing of the document and thumb printing it too, Counsel said the fact that a document was signed in some places and thumb printed in other places, is not sufficient to nullify it. He relied on the case of HHV.A Otitoju Vs Gov. of Ondo State & Ors (1994) 4 SCNJ (Pt 11) 224 at 234.

On the identification of Appellant, Counsel said, PW1 and PW6 had identified Appellant as one of the persons that committed the offence, and so identification parade was not necessary, in the circumstance.

Counsel relied on the case of Etisi Vs The State (2018) ALL FWLR (Pt.920) 44, as to the vital witness(es) required to give evidence for the prosecution in armed robbery case, namely:
(a) The victim of the armed robbery;
(b) The Police Officers who arrested the accused persons;
(c) Evidence of the circumstances in which accused persons were arrested;
(d) Eye witness(es) of any the robbery who can give credible evidence of the armed robbery;
(e) Compelling circumstantial evidence.

Counsel added that such vital witness(es) and evidence had been produced in this case, and urged us to dismiss the appeal.

RESOLUTION OF THE ISSUE
Were the Exhibits E & K, properly, admitted, and were they relevant to sustain the conviction of the Appellant?

A brief facts of this case, shows that Appellant, together with 4 other Accused persons, were arrested and tried for conspiracy to commit armed robbery and for the actual commission of the armed robbery on 6th December, 2013 in the homes of PW1 and PW6.

Evidence of Prosecution witnesses, particularly, PW1 and PW6, had identified the Appellant and the other accused persons, and pinned them to the robbery. Appellant made confessional statement, which was admitted without any objection at the trial, as Exhibits E (Hausa Version) and K (English translation/version). The trial Court relied on the said confessional statement, which it said was corroborated by other pieces of evidence, including testimonies of PW1 and PW6, to convict the accused persons.

On appeal, Appellant had raised a number of Issues against the admission and reliance on the said confessional statement to convict him (Appellant).

The law is trite, that where a party failed to raise an objection to the tendering/admission of a document at the trial of the case, and the said document was found relevant and admissible by the trial Court, the same can be relied upon by the trial Court to arrive at its decision, as the admissibility of said document ceases to be an issue, and Appellant cannot challenge the admission and use of the said document on appeal. See the case of Anagbado Vs Faruk (2018) LPELR–44909 SC, where it was held:
“The law is trite and well settled too, that if party fails to raise objection to the admissibility of a document tendered by an opposite party, the person/party who fails to object to the admission of such document, cannot later raise the issue of admission of the document by the trial Court at the appellate Court. See Alade vs Olukade (1976) 2 SC 183 at 119; Raimi v Akintoye (1986) 3 NWLR (pt.26) 97. The doctrine of estoppel by conduct is even applicable on that.” Per SANUSI, JSC
See also NCS & Anor Vs Bazuaye (2005) LPELR–5948 CA, where my lord Abba-Aji JCA (as she then was) held:
“Admissibility of evidence in any judicial proceedings before any Court of law established in the Federal Republic of Nigeria is governed by the Evidence Act. A Court of law is expected to admit and act only on evidence which is admissible in law. But when inadmissible evidence is tendered, it is the duty of the opposite party to immediately object to its admissibility. Where the party fails to object, the Court may, in civil cases, reject such documents and must reject such evidence in criminal cases. The question that arises is, where a party fails to object to its admissibility, is it open to the party to raise an objection on that ground in a Court of Appeal as the appellants are now doing? There is in law, a distinction between documents which are inadmissible in law in any event, wherein counsel would be allowed to raise the issue on appeal, and documents admissible under certain circumstances wherein counsel would not be so allowed.”

Of course, in criminal trials, the appropriate time to raise objection against admission of a confessional statement, is at the tendering of the said statement by the prosecution, and the Accused person, or his Counsel, is expected to raise such objection, timeously, to enable the trial Court consider the need to conduct a trial-within-trial. See the case of Ofordike Vs The State (2019) LPELR–46411 SC, where the Supreme Court held:
“The learned Counsel for the Respondent made it clear that denial of making a confessional statement is not synonymous with alleging that it was involuntarily made which I agree totally. This much was held by the Court below in its judgment as found on page 139 of the record as follows:- “In this appeal under consideration, it is clear on record that the appellant did not through his counsel and during the trial, particularly at the point when the prosecution applied to tender the said confessional statement object to its admissibility on the grounds that it was involuntarily made or obtained from him with coercion or as a result of threat to his life or promise of any advantage. In view of the foregoing, a trial within trial is unnecessary and the trial Court was right in its judgment.” I agree entirely with the position taken by the Court below because, as I have stated above, a trial within trial is necessary where the voluntariness of the making of a confessional statement by an accused person is in issue or raised by an accused person or his counsel. Where an accused person admits making the statement but contends or asserts that he did not make it voluntarily, but under duress or some other alleged influence, then a trial with trial will be conducted. Where however as in this case, the objection to the admissibility of accused confessional statement is based on the grounds that it was not read over to him and that he did not make it, the statement is treated as a voluntary statement and is admissible without the Court holding a trial within trial which is necessary only where the issue of involuntariness is raised. See Onyenye v The State (2012) 15 NWLR (pt 1324) 586 at 619 paragraphs A-C where this Court set out the circumstances and effect of confessional statements obtained by duress and those merely retracted as follows:- 1. Where the accused has clearly expressed his ordeal in the process of obtaining the statement accredited to him in effect that it was obtained by force, tricks or undue influence or any non-recognizable legal ways, there would be need for a trial within trial. 2. Where the accused retracted his confessional statement on the ground that it was not read to him before he signed it or that he never made it at all, the requirement of a trial within trial is not applicable…” Per OKORO, JSC
Only recently this Court had opportunity to re-state this principle of law, again, in the case of Usman Vs The State (2022) LPELR–56762 (CA), when we said:
“Only recently, we had course to restate the law in the case Kabiru Bala v The State (2022) LPELR-56936, on confessional statement as the best evidence to work with and to convict on, once the statement is adjudged credible and made voluntarily by the accused person. We held, thus: “By law, a confessional statement is enough evidence, and, in fact the best evidence, to establish commission of offence, coming from the accused person himself where the confession is adjudged voluntarily made. See the case of Uhara Vs The State (2021) LPELR- 55512 (CA): “We have held several times that a confessional statement alone is a conclusive and sufficient evidence to establish conviction, and, in fact, the best evidence of the commission of the offence, coming directly from the accused person himself, and closing every door of defence against him, except where the issue/defence of provocation can be invoked. See FRN Vs Iweka (2011) LPELR-9350 SC, where it was held that confessional statement is the best evidence of proof of crime and can be accepted as satisfactory evidence, upon which alone the accused can be convicted. See also Ogoala Vs The State (1991) 2 NWLR (Pt.175) 509 at 534.”

Pages 20 and 40 of the Records of Appeal show what transpired when Exhibits E and K were tendered by the Prosecution. On page 20, the PW2 (Inspector Sulaiman – IPO) said:
“If I see the statement of Gambo Sule, the 1st Accused, I can identify it by my hand writing and my signature.”
Court: witness shown a document who identified it.
Sale: Tenders,
Haladu: No objection because the 1st accused person merely say (sic) the name on the statement is not his, the signature is not also his and he does not know PW2.
Court: The Statement of the 1st Accused is admitted in evidence to be marked as Exhibit E.” (Page 20 of the Records)

Exhibit K was tendered by Sgt. Garba Galadima (PW4), one of the (IPOs) (who tendered what CPL Bali Nantip, another of the IPOs, recorded as the translation of Appellant’s Hausa statement into English). He was recalled to tender the said English translation by the Prosecution Counsel, Sale Esq. The statement had also been admitted without objection by Appellant’s Counsel, and marked Exhibit K (See pages 39–40 of the Records).

Under cross-examination the following ensued on pages 40–41 of the Records:
“Sgt: Garba Galadima:
I am aware of what transpired between the 1st Accused and CPL. Bali Nantip. I did not record the statement of the 1st Accused. I know the content of this exhibit since it was recorded in my presence. It was the writer of this statement that made some correction on the date. At the last page of this document all the correction (sic) were made by the writer. All I told this Court (sic) what I gathered from the accused persons and what I saw in the case diary. 1st accused person spoke in Hausa during the investigation…”

There was evidence that Cpl. Bali Galadima, who recorded Exhibit K, was serving in Abuja, at the time of the taking of the evidence. The Appellant did not therefore challenge the content, voluntariness, or veracity of the said Exhibits E and K at the trial, apart from his Counsel arguing that his (Appellant) name was not Gambo Sule (as carried by the statements and charge sheet), but Ibrahim Sulaiman! But he took plea, as per the charge in the name, Gambo Sule!

The PW1, Abba M. Ashiru, one of the victims of the robbery, had told the Court:
“… I recognize the 4 accused persons in the dock. I recall that on the 6th Dec. 2013, after the Isha’l prayer I was together with my neighbour… when I saw some people entering my house. I thought they were my relations. My house is at K/Ruwa quarters… I then entered the house I saw 3 people in the premises… they surrounded me and said I should give them money. They said, if I did not give them money, they will kill me. At this time one of them covered his face with a turban, but I could see and recognize 2 of them. At the spot I recognized the 1st Accused person, who pulled out a big weapon from his body, the weapon look like a matchet… The 3rd Accused was holding a cutless (sic). The 1st attempted to hit me with the weapon at his hand I resisted by hold (sic) his hand, the accused then hit me with his cutless (sic) on my head. I then released the hand of the 1st accused person, who soon thereafter stabbed me with his weapon on my chest, twice. I then shouted for help. When I shouted, they all went out and I attempted to pursue them with blood all over my body. Before we went out, my neighbour upon hearing my shout, entered into the house; as he was coming in, they stabbed him on his stomach.
All of the men rushed out… Musa fell down, died instantly, in front of my house. I also fell down unconsciously and I only regained my consciousness after 3 days at M.M. Specialist Hospital. It was after 3 days when I regain my conscious (sic) Policemen came and recorded my statement. I spent 3 weeks on admission, before I was discharged from Hospital.” See Pages 11 and 12 of the Records of Appeal)

PW2 (IPO) was one of the Policemen who rushed to the scene of crime, on hearing of the robbery; at the scene they found the dead body of Musa the deceased and carried the body to the hospital, where it was confirmed dead, PW1 had already been taken the Hospital. While trying to cope with the report, and what happened, they (Policeman) received a distress call of another robbery going on at Goron Dutse quarters, Kano, and they rushed there, and at the scene, found out that the neighbourhood had arrested one of the robbers – the 2nd accused person – Ahmed, who had been injured. They took him to the hospital for treatment; they later arrested the 4th accused, who led them (Police) to arrest other 2 accused. They (Accused) all made statements to the Police, confessing the crime, and they were all taken before Superior Police Officers to confirm the confessional statements. (See pages 14–16 of the Records).

PW6, Garzali Sani, recalled what happened on the same 6/12/2013, in his house at Goron Dutse Quarters, Kano at about 8pm. He heard of some commotion and shout, after performing the evening prayers, within his premises. He came out from his room to see what happened. PW6 said:
“I saw the 2nd Accused person standing I asked him what brought him into my house, he said he is a mobile Policeman, while I was talking with the 2nd Accused, the 1st Accused then appeared, with a matchet and a knife at his hand. He then directed me into my room and asked me to give him N10m, I withdrew from the Bank. I told him that for past one week I did not go to the Bank. He insisted that I should give them money. I then opened safe and gave then the sum of N160,000 the 1st accused then showed me a long knife at his hand and asked me what did I see on the knife, I said it was blood, he then said they just killed somebody at Kofa Ruwa and if I did not give him the money, they requested, they will kill me. He then attempted to state (sic) me with the knife on my neck and I resisted by trying to direct the knife with my hand and they injured me on my fingers. I then requested my wife to give them some jewelries, before she gives them, the 4th accused hit her with the matchet on her back, as a result of that beating, she had a miscarriage. They then took away my handset, that of my wife and 2 of house boys… one of my house boys used a staircase of my house, jump outside and informed neighbour (sic). The attached (sic) then tried to escape but my neighbour (sic) pursued them and arrested the 2nd accused person. When I came and saw the 2nd accused that was arrested by my neighbours, people were trying to kill him, but Policemen came with a vehicle and they took away the 2nd accused person.
The 3rd accused was also arrested by officials of Goron Dutse Prison and was handed over to the Police… The following day I was called by the Police at Dala Division, where I identified the 1st and 4th Accused persons…” (See pages 36–38 of the Records of Appeal)

The above evidence by eye witnesses had clearly identified the Appellant, and pinned him down to the scene of crime, as one of the robbers, and so whatever name, or other name Appellant elected to bear, was of no consequences. His confessional statements (Exhibits E & K) had therefore been corroborated by other pieces of evidence, particularly, those of PW1 and PW6.

I can therefore not fault the findings and holding of the trial Court on page 290 of the Records of Appeal, when it held:
“…I had earlier in the course of this judgment evaluated the confessional statement of the 1st accused person and came to the conclusion that it deserved full weight as there are independent pieces of evidence which confirm the content of the said confessional statement. The retraction of the 1st accused or his mere denial of involvement in the commission of the alleged offence holds no water and I so hold.
Equally the denial of his name not (sic) being Gambo Sule is of no moment because he was fixed at the 2 scenes of crime by PW1 and PW6. Similarly, the defence of the 2nd accused is similar to that of the 1st accused. He claims to be Idris Uba and not Ahmed Salisu as shown on the charge sheet head…”

By law, a confessional statement is sufficient to lie a conviction, even if retracted by Appellant, once the Court find substance in it, and same is corroborated by other pieces of evidence. The evidence of the eye witness account (PW1 and PW6) were strong to corroborate the confession of Appellant to robbery against the Appellant and were even alone, capable of establishing the offence, in my opinion.
See the case of Hussein Vs The State (2022) LPELR–57021 (CA), where we held:
“Only recently, we had course to restate the law in the case Kabiru Bala v The State (2022) LPELR-56936, on confessional statement as the best evidence to work with and to convict on, once the statement is adjudged credible and made voluntarily by the accused person. We held, thus: “By law, a confessional statement is enough evidence, and, in fact the best evidence, to establish commission of offence, coming from the accused person himself where the confession is adjudged voluntarily made. See the case of Uhara Vs The State (2021) LPELR- 55512 (CA): “We have held several times that a confessional statement alone is a conclusive and sufficient evidence to establish conviction, and, in fact, the best evidence of the commission of the offence, coming directly from the accused person himself, and closing every door of defence against him, except where the issue/defence of provocation can be invoked. See FRN Vs Iweka (2011) LPELR-9350 SC, where it was held that confessional statement is the best evidence of proof of crime and can be accepted as satisfactory evidence, upon which alone the accused can be convicted. See also Ogoala Vs The State (1991) 2 NWLR (Pt.175) 509 at 534.”

I cannot therefore see any merit in this appeal, and it is accordingly dismissed, as I affirm the decision of the lower Court.

BOLOUKUROMO MOSES UGO, J.C.A.: I read in advance, a draft copy of the judgment delivered by my learned brother ITA GEORGE MBABA, J. C. A. I am in agreement with his reasoning and conclusion. I am also of the opinion that this appeal lacks merit. Accordingly, I also dismiss it.

USMAN ALHAJI MUSALE, J.C.A.: I had the privilege of reading in draft, the leading judgment just delivered by my learned brother ITA G. MBABA, JCA. I am in agreement with the reasoning and conclusion reached by him in this appeal.

For the reasons ably given by him, I also dismiss the appeal and affirm the decision of the Court below.