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TUKUR v. STATE (2021)

TUKUR v. STATE

(2021)LCN/15679(CA)

In the Court Of Appeal

(KANO JUDICIAL DIVISION)

On Monday, June 28, 2021

CA/KN/494/C/2019

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

MUMMUNI TUKUR APPELANT(S)

And

STATE RESPONDENT(S)

 

RATIO

THE BURDEN OF PROOF IN CRIMINAL CASES

This is a criminal trial. It is settled 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. Where the commission of crime by a party is in issue in any proceedings, 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 or proof of a mathematical certainty. This is due to the aphorism that absolute certainty is impossible in any human venture, inclusive of ministration of justice. 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 –Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221, Phillip Vs State (2019) 13 NWLR (Pt 1690) 209, Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1,Ibrahim Vs Commissioner of Police (2020) 15 NWLR (Pt 1746) 122, Fekolomoh Vs State (2021) 6 NWLR (Pt 1773) 461.
PER ABIRU, J.C.A.

INGREDIENTS TO PROVE THE OFFENCE OF RAPE

The essential ingredients that the Respondent was under obligation to prove beyond reasonable doubt to sustain this count against the Appellant were (i) that the Appellant had sexual intercourse with the victim; (ii) that the act of sexual intercourse was done without consent of the victim or that the consent, if any was obtained by fraud, force, threat, intimidation, deceit or impersonation or that the victim was under the age of fourteen years, the law is that a girl under fourteen years cannot give consent; (iii) that the victim was not the wife of the Appellant; (iv) that the Appellant had the mens rea, the intention to have sexual intercourse with the victim without her consent or that the accused acted recklessly not caring whether the victim consented or not; and (v) that there was penetration –Julius Vs State (2019) LPELR 48491(CA), Enang Vs State (2019) LPELR 48682(CA), Idam Vs Federal Republic of Nigeria (2020) LPELR 49564(SC), Muhammadu Vs State (2020) 17 NWLR (Pt 1753) 252, Damuna Vs State (2021) 4 NWLR (Pt 1767) 419. PER ABIRU, J.C.A.

METHODS OF PROVING THE GUILT OF AN ACCUSED PERSON
It is settled law that in criminal trials, the guilt of an accused person for the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence; and (c) evidence of an eye witness who saw the accused person committing the offence charged. Any one of the methods is sufficient – Phillip Vs State (2019) 13 NWLR (Pt 1690) 209, Hamza Vs State (2019) 16 NWLR (Pt 1699) 418, Alao Vs State (2019) 17 NWLR (Pt 1702) 501 and Itodo Vs State (2020) 1 NWLR (Pt 1704) 1. PER ABIRU, J.C.A.

THE POSITION OF LAW ON THE DUTIES OF THE TRIAL COURT

 It is settled law that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Nacenn Nigeria Ltd Vs Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt 1257) 193,Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1, Ogundalu Vs Macjob (2015) LPELR 24458(SC), Eze Vs State (2018) 11 NWLR (Pt 1630) 353.

It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on the side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Olude Vs State (2018) LPELR 44070(SC), Enukora Vs Federal Republic of Nigeria(2018) 6 NWLR (Pt 1615) 355, Idagu Vs State (2018) LPELR 44343(SC), Fulani M. Vs State (2018) LPELR 45195(SC), Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Ayinde Vs State (2019) 12 NWLR (Pt 1687) 410, State Vs Gbahabo (2019) 14 NWLR (Pt 1693) 522, Tope Vs State (2019) 15 NWLR (Pt 1695) 289. 
PER ABIRU, J.C.A.

THE POSITION OF LAW ON PERVERSE DECISIONS OF A COURT
A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable –Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217, State Vs Sani (2018) 9 NWLR (Pt 1624) 278. 

In other words, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court and embark of a re-evaluation of the evidence led by the parties where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Kayili Vs Yilbuk ​(2015) 7 NWLR (Pt 1457) 26, Ude Vs State (2016) 14 NWLR (Pt 1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92.
PER ABIRU, J.C.A.

THE POSTION OF LAW ON THE EVALUATION OF EVIDENCE
Now, the evaluation of evidence involves consideration of each set of evidence given by the parties, the determination of the credibility of respective witnesses and ascription of probative value to the evidence evaluated. It entails a consideration of the totality of the evidence including documents tendered by the parties – Maiyaki Vs State (2008) 15 NWLR (Pt 1109) 173, Anekwe Vs Nweke (2014) 9 NWLR (Pt 1412) 393, Brown Vs State (2017) 4 NWLR (Pt 1556) 341. In evaluating the evidence led by the parties, a trial Court is enjoined to place the totality of the testimonies of both parties on an imaginary scale. One side of the scale will contain the evidence of the prosecution while the other side will harbor the evidence of the accused. The lower Court must then weigh both together to determine their probative value, and, in doing so, consider whether the evidence led by a party in its totality is relevant, admissible, credible, conclusive and more probable than that adduced by the other party. Once these considerations fall into line, the lower Court must then apply the relevant laws to the facts or evidence adduced, in order to reach a decision – Adamu Vs State (1991) 4 NWLR (Pt 187) 530, Edwin Vs State(2019) 7 NWLR (Pt 1672) 553, Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221,Statoil (Nig) Ltd Vs Inducon (Nig) Ltd ​(2021) 1 NWLR (Pt 1774) 1.
In other words, in evaluating the evidence led by a party, a trial Court does not segment and compartmentalize the pieces of evidence led by the party and consider them in isolation from each other in single units. It is elementary that the contents of the notes of evidence, like the content of any document, must be read and considered in whole, and not in parts in isolation, to get a full picture of the story contained therein – Ogah Vs Ikpeazu (2017) 17 NWLR (Pt 1594) 299, Peoples Democratic Party Vs Oranezi (2018) 7 NWLR (Pt 1618) 245, Ukoh Vs Ukoh (2021) 7 NWLR (Pt 1775) 303. Thus, the approach adopted by Counsel to the Appellant in contending against the evaluation of evidence done by the lower Court was self defeating and totally unproductive. It is either the Counsel was naïve or was being clever by half, trying to create or conjure up a case where none existed.
PER ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Jigawa State delivered in Suit No JDU/99C/2016 by Honorable Justice Umar M. Sadiq on the 8th of April, 2019.

The Appellant was arraigned by the Respondent before the lower Court on a two count charge of armed robbery and rape. The Appellant was alleged to have on or about the 20th of January, 2016 at Shuga Bush Village of Kirikasama Local Government Area of Jigawa State to have robbed one Tatu Umar, while armed with a knife, of the sum of Five Hundred Naira and thereby committed an offence punishable under Section 298(b) of the Penal Code Law of Jigawa State. The Appellant was also alleged to have on about the same date and at the same location and time intercepted the said Tatu Umar, threatened her with a knife, fell her down and forcefully had sexual intercourse with her and thereby committed an offence contrary to Section 282 of the Penal Code Law of Jigawa State.

​The Appellant pleaded Not Guilty to the two counts and the matter proceeded to trial and in the course of which the Respondent called four witnesses and tendered the confessional statement of the Appellant in proof of its case and the Appellant testified as the sole witness in proof of his defence. At the conclusion of trial, Counsel to the parties filed their respective written addresses and they relied on and adopted same before the lower Court. The lower Court thereafter entered judgment wherein it found the Appellant guilty as charged and convicted him of the offences of armed robbery and rape. The lower Court sentenced the Appellant to a term of imprisonment of twenty-one years on each count. 

​The Appellant was dissatisfied with the judgment and he caused a notice of appeal dated the 2nd day of July, 2019 and containing four grounds of appeal to be filed against it. The notice of appeal was subsequently amended with the leave of this Court and the Appellant filed an amended notice of appeal containing nine grounds of appeal and dated the 28th of January, 2020 and the amended notice of appeal was deemed properly filed by this Court on the 21st of October, 2020. In arguing the appeal, Counsel to the Appellant filed an amended brief of arguments dated the 16th of December, 2020 on the same date and the amended brief of arguments was deemed properly filed by this Court on the 26th of January, 2021. The Respondent, in response, filed an amended brief of arguments dated the 2nd of February, 2021 on the 4th of February, 2021. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments as their submissions on the appeal. 

Counsel to the Appellant distilled one issue for determination in the appeal and this was:
Whether the Respondent led credible evidence that proved the charge of robbery and rape beyond reasonable doubt to warrant the conviction of the Appellant for the offences charged.

In arguing the issue for determination, Counsel to the Appellant referred to several case law authorities in asserting the established principles of law that, like any other criminal trial, the Respondent bore the static burden of proving all the ingredients of the two offences charged, armed robbery and rape, beyond reasonable doubt and that failure to prove any of the ingredients of the offences was fatal. Counsel also reiterated the ingredients of the offences of armed robbery and rape and stated that the Respondent may prove the ingredients of both offences by confessional statement of the Appellant, direct eye witness account, and/or circumstantial evidence and he relied on case law authorities to buttress his submissions. Counsel noted that the Respondent relied on the three modes of proof in the presentation of its case against the Appellant through the evidence of the four prosecution witnesses and in the confessional statement tendered as Exhibits A and A1.

Counsel noted that the Appellant retracted the confessional statement and conceded that a trial Court could convict based on a retracted confessional statement, but stated that before a Court of law would do so, such a statement must be properly evaluated to determine its probative value. Counsel noted that the Respondent tendered the Hausa version and English version of the confessional statement as Exhibits A and A1 respectively and stated that the Hausa version of the confessional statement, Exhibit A, had no probative value because it was not in the language of the Court, which is English language and he referred to the cases of Onyia Vs State (2008) LPELR 2743(SC),  Madu Vs State (1997) 1 NWLR (Pt 482) 386 and Damina Vs State (1995) 8 NWLR (Pt 415) 503, amongst others. Counsel stated that the English version of the confessional statement, Exhibit A1, fell short of the legal requirements of an appropriate confessional statement as laid down in the case of Ogudo Vs State (2011) 18 NWLR (Pt 1278) 1 in that it did not contain the cautionary words with the signature of the Appellant nor the signature of the Appellant at the end of the translated statement and it did not show that the statement was read over to the Appellant and confirmed by the Appellant with his signature on it. 

​Counsel conceded that Exhibit A1 stated on its face that the words of caution were administered in Hausa language, but he raised many questions about the cautionary words, the answers to which he said were not contained on the face of Exhibit A1 and he stated that the cautionary words were not a mere formality and that they were what satisfies the Court that an accused person knew the implication of the contents of his statement. Counsel stated that another reason the lower Court ought not to have accorded any probative value to Exhibit A1 was that there was a discrepancy in the oral evidence of the witness who tendered the document and the interpretation of the statements of the Appellant in Exhibit A1 and that the witness gave evidence that the Appellant said “on his way to Ilalla Village in Kafin Hausa Local Government” and this was interpreted in Exhibit A1 as “I went to Illalla Village” and that there was a world of difference between the two statements. 

Counsel stated further that Exhibits A and A1 did not amount to confessional statements of the offences charged because the offences confessed to in the statements occurred in Ilalla Village in Kafin Hausa Local Government Area while the offences charged were said to have taken place at Shuga Bush Village in Kirikasama Local Government Area. Counsel stated that no evidence was led before the lower Court showing that Ilalla Village in Kafin Hausa Local Government Area was the same as Shuga Bush Village in Kirikasama Local Government Area and that the lower Court thus in error in relying on Exhibits A and A1 in convicting the Appellant and he referred to the cases of Ibrahim Vs State (2015) 4 SCM 184, Bello Vs COP, Plateau State ​ (2017) 5 SC (Pt III) 117 and Patrick Vs State (2018) All FWLR (Pt 948) 1430. Counsel stated that since the crime confessed to in Exhibit A1 was not the subject of the charge before the lower Court, it cannot amount to a confessional statement in the circumstances of this case and he referred to the cases of Gbadamosi Vs State (1992) 9 NWLR (Pt 266) 465 and Adamu Vs State (2019) WRN 1.

​Counsel thereafter shifted his attention to the testimonies of the four prosecution witnesses and he traversed through the evidence of the first prosecution witness, the Investigating Police Officer who recorded the statement of the Appellant, and noted that the witness testified in examination in chief that the Appellant confessed to the commission of the offences and that he recorded the statement and that the knife used in the commission of the crime was recovered and that under cross examination the witness gave evidence that the investigation was team work and that his role was only to record the statement of the Appellant. Counsel stated that it was obvious from the evidence of the witness under cross examination that he had only come to Court to relate what the Appellant told him in the course of recording the statement and not what he discovered during investigation and that this made the evidence of the witness hearsay evidence. Counsel stated that the witness testified that he did not conduct any investigation and thus his evidence did not qualify as evidence discovered by the Police in the course of investigation and it was thus not admissible and he referred to the case of Maiyaki Vs State (2008) 3 NWLR (Pt 1075) 429.

​Counsel traversed through the evidence of the victim, the second prosecution witness, and noted that the witness gave evidence that she was robbed at gun point of the sum of N500.00 and that her assailant also raped her and that it was the Appellant that committed the acts. Counsel stated that the evidence under cross examination made the second prosecution witness’ identification of the Appellant as the assailant doubtful because she testified that she did not recognize the Appellant during the incident as he had a mask on his face and that she knew the assailant was a short person and that it was after the Appellant was arrested and that she came to recognize him and that she had seen the Appellant before the incident. Counsel stated that the evidence of the witness on the identification of the Appellant as the assailant was not credible and reliable. Counsel stated that the evidence of the third and fourth prosecution witnesses, who arrived at the scene of the incident shortly after its occurrence and upon the pointer given by the second prosecution witness as to the direction taken by her assailant, chased, arrested the Appellant from where he was hiding in the bush, did not assist in the identification of the Appellant as the assailant as they testified that the face of the Appellant was not masked when they took him to the Ward Head. 

Counsel stated that the evidence of the third and fourth prosecution witnesses did not prove any of the ingredients of the offences of armed robbery and rape as they did not witness the incident, but only arrived at the scene after the incident and any evidence given by them about the incident was at best hearsay evidence and inadmissible and he referred to the cases of Okoro Vs State (1998) LPELR 2493(SC) and Ladoja Vs Ajimobi (2016) LPELR 40658(SC). Counsel stated that it was not the evidence of either of the witnesses that they recovered stolen N500.00 from the Appellant and that the knife they said they recovered from the Appellant was not tendered in evidence and that this gap of not linking the knife the witnesses said they recovered with the commission of the crime support the evidence of the Appellant that he used the knife to find food for his dogs and that this was fatal to the case of the Respondent and he referred to the case of State Vs Ajayi (2016) 14 NWLR (Pt 1532) 196.Counsel stated that the mere fact that the third and fourth prosecution witnesses testified that they saw the Appellant running away from the scene of the incident does not serve as proof of commission of a crime and, at best, only raises suspicion and he referred to the cases of Clark Vs State (1986) 4 NWLR (Pt 35) 381 and Ugwumba Vs State (1993) 5 NWLR (Pt 296) 660.

​Counsel thereafter repeated over and over again the same arguments he had canvassed and referred to additional case law authorities and stated that the Respondent did not lead credible evidence to prove the ingredients of the offences charged and that the lower Court was in error in relying on the unreliable evidence led by the four prosecution witnesses and on the puerile confessional statement of the Appellant in convicting the Appellant. Counsel concluded his arguments by urging the Court to find merit in the appeal and to allow same, set aside the judgment of the lower Court including the conviction of and sentence passed on the Appellant therein.

​Counsel to the Respondent agreed with the issue for determination as formulated by Counsel to the Appellant and conceded in his response arguments that the Respondent had the onus of proving the ingredients of the offences charged beyond reasonable doubt and he reproduced the ingredients of the two offences of armed robbery and rape and recanted the three recognized modes of establishing the guilt of an accused person and he referred to several case law authorities. Counsel stated that the Respondent led credible evidence to prove all the ingredients of the offence of armed robbery against the Appellant through the evidence of the victim, the second prosecution witness, and he traversed through the relevant portion of the evidence of the witness. Counsel stated that the evidence of the witness thereon was not discredited or contradicted under cross examination and that it is trite law that a Court can act on such evidence and he referred to the case of Mobil Producing Nigeria Ltd Vs Monokpo (No. 2) (2001) FWLR (Pt 78) 1210. 

Counsel stated that the contention of Counsel to the Appellant on the lack of identification of the Appellant by the second prosecution witness as her assailant was baseless as the law recognizes that identification of an accused person is based on the facts and circumstances of each case and may be done through the description of physical and other features of the accused person and he referred to the case ofState Vs Aibangbee (1988) 3 NWLR (Pt 84) 548. Counsel stated that the witness identified the Appellant by his features and that the Appellant admitted robbing a woman in the bush and running away before he was arrested by some people in his confessional statement, Exhibit A1, and that the third and fourth prosecution witnesses gave evidence that they saw the second prosecution witness immediately after the incident and she pointed to the Appellant, who was running away, as her assailant and they chased and apprehended the Appellant. Counsel stated these pieces of evidence positively identified the Appellant as the assailant and that the confession of the Appellant to committing the armed robbery and rape sufficiently proved the offences and that it was trite law that one of the best form of evidence is a confessional statement and he referred to the case of Dibie Vs State (2007) 9 NWLR (Pt 1038). 

Counsel referred to the case of Matthew Vs State (2018) LPELR 43716(SC) in asserting that a retracted confessional statement was admissible evidence and that the contention of the Counsel to the Appellant against the probative value of the English translation of the confessional statement, Exhibit A1, was misconceived because the position of case law is that such translation need not be signed by the Appellant and that the signature of the person who interpreted thereon was sufficient and that the signature of the interpreter was on Exhibit A1 and he referred to the case of State Vs Sa’idu (2019) LPELR 47397(SC). Counsel stated that additionally the contention of Counsel to the Appellant against the probative value of the Hausa version of the confessional was also baseless as the law is that once a document made in a language other than English is accompanied by an English translation of it, it would be accorded full value and he referred to the case of Damina Vs State (1995) LPELR 918(SC). Counsel stated that the Hausa version of the confessional statement carried the cautionary words duly endorsed by the Appellant and that the English version noted that the cautionary words were administered to the Appellant in Hausa language and that the lower Court found that the contents of the confessional statements were corroborated by the evidence of four prosecution witnesses. 

Counsel referred to the case of Adegoke Motors Ltd Vs Adesanya (1989) LPELR 94(SC) in asserting that Counsel to the Appellant merely cited case law authorities out of context in his submissions and that most of the cases referred to by Counsel were not relevant to the facts of this case. Counsel stated that the alleged discrepancy in the location of the commission of the offences between Ilalla Village in Kafin Hausa Local Government Area mentioned in the confessional statement and Shuga Bush Village in Kirikasama Local Government Area mentioned in the charge harped on by Counsel to the Appellant was really non-existent. Counsel stated that a holistic consideration of the entire evidence led in the case shows clearly that Ilalla Village and Shuga Village were neighbouring Villages and that the offence was indeed committed in the bush of Shuga Village and that upon his arrest, the Appellant was taken to the palace of the Village Head of Shuga and then to the Police Division in Kirikasama and he was taken to Court in Kirikasama. 

Counsel stated that the evidence led by the Respondent showed that the offences of armed robbery and rape were committed against the second prosecution witness and that the perpetuator of the offences was the Appellant. Counsel stated that the contention of the Counsel to the Appellant that failure to tender the knife recovered from Appellant was fatal to the case of the Respondent was totally misconceived and that the law is that where credible and positive evidence is led proving the allegations of an offence, failure to tender the weapon by which the offence was committed was of no consequence and he referred to the case of Adamu Vs State (2017) LPELR 41436(SC). Counsel reiterated that the totality of the evidence led by the Respondent proved all the ingredients of the offences of rape and armed robbery against the Appellant and he concluded his arguments by urging this Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court including the conviction of and sentence passed on the Appellant.

This is a criminal trial. It is settled 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. Where the commission of crime by a party is in issue in any proceedings, 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 or proof of a mathematical certainty. This is due to the aphorism that absolute certainty is impossible in any human venture, inclusive of ministration of justice. 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 –Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221, Phillip Vs State (2019) 13 NWLR (Pt 1690) 209, Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1,Ibrahim Vs Commissioner of Police (2020) 15 NWLR (Pt 1746) 122, Fekolomoh Vs State (2021) 6 NWLR (Pt 1773) 461.

The Appellant was charged on a two count charge of armed robbery and rape. In the first count, the Appellant was alleged to have robbed one Tatu Umar while armed with a knife, of the sum of Five Hundred Naira. It is settled law that the essential ingredients that the Respondent 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 – Ibrahim Vs Commissioner of Police (2020) 15 NWLR (Pt 1746) 122, Maba Vs The State (2021) 1 NWLR (Pt 1757) 353, Samaila Vs The State (2021) 5 NWLR (Pt 1770) 562, Dondos Vs State (2021) 9 NWLR (Pt 1780) 24.

​In the second count, the Appellant was alleged to have intercepted the said Tatu Umar, threatened her with a knife, fell her down and forcefully had sexual intercourse with her. The essential ingredients that the Respondent was under obligation to prove beyond reasonable doubt to sustain this count against the Appellant were (i) that the Appellant had sexual intercourse with the victim; (ii) that the act of sexual intercourse was done without consent of the victim or that the consent, if any was obtained by fraud, force, threat, intimidation, deceit or impersonation or that the victim was under the age of fourteen years, the law is that a girl under fourteen years cannot give consent; (iii) that the victim was not the wife of the Appellant; (iv) that the Appellant had the mens rea, the intention to have sexual intercourse with the victim without her consent or that the accused acted recklessly not caring whether the victim consented or not; and (v) that there was penetration –Julius Vs State (2019) LPELR 48491(CA), Enang Vs State (2019) LPELR 48682(CA), Idam Vs Federal Republic of Nigeria (2020) LPELR 49564(SC), Muhammadu Vs State (2020) 17 NWLR (Pt 1753) 252, Damuna Vs State (2021) 4 NWLR (Pt 1767) 419.

It is settled law that in criminal trials, the guilt of an accused person for the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence; and (c) evidence of an eye witness who saw the accused person committing the offence charged. Any one of the methods is sufficient – Phillip Vs State (2019) 13 NWLR (Pt 1690) 209, Hamza Vs State (2019) 16 NWLR (Pt 1699) 418, Alao Vs State (2019) 17 NWLR (Pt 1702) 501 and Itodo Vs State (2020) 1 NWLR (Pt 1704) 1.

It is obvious from the records of appeal that the Respondent relied on the eye witness account of the victim, who testified as the second prosecution witness, the confessional statement of the Appellant tendered as Exhibits A and A1, and circumstantial evidence of the Investigating Police Officer, the first prosecution witness, and of the third and fourth prosecution witnesses in proving the guilt of the Appellant. The Appellant in his defence denied the case of the Respondent; he denied knowing the victim; he denied robbing or raping the victim; he denied admitting the commission of the offence and stated that he did not make any statement to the Police and neither was he forced to sign or thumbprint any statement recorded by the first prosecution witness. 

​The lower Court considered the two offences charged against the Appellant separately in its deliberations in the judgment. In considering the offence of armed robbery, the lower Court restated the ingredients of the offence and continued thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“On ingredient (a) the relevant evidence in proof of the same was the testimony of PW2 (victim) where she said that “I know the accused person. We met on my way from Illala Village to Shuga Village in Kirikasamma Local Government. I gave him a chance to pass, he held my neck and he fell me down, he picked up a knife as I was reciting Du’a, he put the knife on the ground and removed N500.00 from my wrapper.” The evidence of PW2 is the evidence of an eye witness to the offence of robbery who double as the victim of the offence.
On the requirement of use of arm by the accused, the evidence of PW2 was to that effect that the accused was armed with a knife. The same evidence on this was corroborated by the evidence of PW3 and PW4 when they said that on the arrest of the accused person they recovered a knife from the accused which they retrieved from him. By the combined effect of the evidence of PW2, PW3 and PW4 the ingredient of being armed was proved by the prosecution.
On the last ingredient (c) as the accused is the one who committed the robbery. The evidence of the victim points to the accused and the evidence of PW3 and PW4 corroborate the facts that indeed it is the accused that robbed the victim of the sum of N500.00 after threatening her with a knife. The PW3 and PW4 who arrived the scene of the crime and met the PW2 with a wrapper in her hand and confused, asked her and she replied that it was the accused who wanted to kill her. The victim pointed in the direction of the accused whereby the PW3 and PW4 saw and chased the accused who tried to hide himself in a heap of stalk, but was unsuccessful as the witnesses brought him out of hiding and retrieved the knife in the possession of the accused. The accused was then taken before the Village Head from where he was taken to Kirikasamma Police Station. 
The accused person was per the evidence while armed with a knife threatened to PW2 (victim) and took away from her the sum of N500.00 at which point the victim was only left in prayers. I have observed the demonstration of the PW2 and I believe her to be a witness of truth. By the evidence of PW2 I am convinced that she was in fact robbed of the sum of N500.00 after being threatened with a knife. …
Another important feature of the case is the confessional statement of the accused person admitted and marked as Exhibits A and A1 which were the Hausa and English translation of the same… The accused in the instant case denied ever making or signing any confessional statement… However, it is clear from the evidence of PW1 the Police Investigation Officer who recorded the statement of the accused person clearly stated how he recorded the statement of the accused under the words of caution and after which he took the accused together with his statement before the Superior Officer who endorsed same. I am of the firm view that the accused made Exhibits A and A1 voluntarily.”

The lower Court thereafter subjected the contents of the confessional statement to the six-way tests laid down by the Courts and found that they were aptly corroborated by the evidence of the four prosecution witnesses. The lower Court concluded by finding that the Respondent proved the offence of armed robbery against the Appellant beyond reasonable doubt and that the Appellant did not lead any credible evidence to rebut the case of the Respondent.

​In considering the offence of rape, the lower Court restated what constitutes rape, the ingredients of the offence and how the offence is proved, and it continued thus:
“In the instant case the evidence of the prosecutrix that the accused had sexual intercourse with her without her consent after putting her in fear of death or harm by the use of the knife in his possession. Even though the evidence of the prosecution witnesses (PW3 and PW4) could not be taken as to corroborate the offence of rape, the evidence of PW1 and Exhibits A and A1 qualify as evidence in corroboration of the offence of rape. Exhibits A and A1 is the confessional statement of the accused person wherein he stated it as it happened by himself …
In the instant case the accused person stated that while he set out to Illala from Suga, he met the victim on the way at around 8.00hrs and he grabbed the PW2 and fell her down and … asked her to give him money, she refused and the accused drew a knife and threatened her and in the process the accused saw N500.00 only and collected same by force. The accused confirmed that he loosened the wrapper of the PW2 and removed his trouser and had sexual intercourse with the PW2, but she did not allow him, the accused, to finish but he really had sex with her. The accused wore back his trouser. The accused threatened her again with the knife should she scream or shout he will slaughter her. The accused said he ran into the bush but had not gone far when he saw some people tracing his footsteps, the accused hid himself in a heap of stalk farm. The PW3 and PW4 got him and took him to the Village Head of Suga from where he was handed over to the Kirikasamma Police Division.
…The confessional statement in Exhibits A and A1 taken together with the evidence of the PW2 makes a complete chain of story that is worth what it contains. The evidence of PW2 fits into that in Exhibits A and A1 as both were cogent, positive unequivocally point to same fact that the accused had in fact raped the PW2.
… In the light of the above taking into view the evidence of the PW2, PW3 and PW on the one side and evidence of the PW1 and Exhibits A and A1 on the other side, the two make a complete case of the offence… In the whole I hold that the prosecution has proved the ingredients of the offence of rape beyond reasonable doubt …”

The lower Court found that the Appellant did not lead any credible evidence to rebut the case of the Respondent.

The complaint of the Appellant in this appeal is against the above reproduced evaluation of evidence carried out by the lower Court. It is settled law that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Nacenn Nigeria Ltd Vs Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt 1257) 193,Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1, Ogundalu Vs Macjob (2015) LPELR 24458(SC), Eze Vs State (2018) 11 NWLR (Pt 1630) 353.

It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on the side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Olude Vs State (2018) LPELR 44070(SC), Enukora Vs Federal Republic of Nigeria(2018) 6 NWLR (Pt 1615) 355, Idagu Vs State (2018) LPELR 44343(SC), Fulani M. Vs State (2018) LPELR 45195(SC), Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Ayinde Vs State (2019) 12 NWLR (Pt 1687) 410, State Vs Gbahabo (2019) 14 NWLR (Pt 1693) 522, Tope Vs State (2019) 15 NWLR (Pt 1695) 289. 

A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable –Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217, State Vs Sani (2018) 9 NWLR (Pt 1624) 278. 

In other words, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court and embark of a re-evaluation of the evidence led by the parties where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Kayili Vs Yilbuk ​(2015) 7 NWLR (Pt 1457) 26, Ude Vs State (2016) 14 NWLR (Pt 1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92.

In contending against the evaluation of evidence carried out by the lower Court, Counsel to the Appellant segmented and compartmentalize each piece of evidence presented by the Respondent and faulted them in isolation from the other pieces of evidence. Counsel faulted the Hausa version of the confessional statement tendered as Exhibit A separately and independent of the other evidence led by the Respondent and he did the same for the English translation of the confessional statement and for the evidence of the first prosecution witness, the evidence of the second prosecution witness and the testimonies of the third and fourth prosecution witnesses. Counsel did not contend against the entire evidence as a whole. This approach of Counsel shows a lack of proper understanding of what evaluation of evidence entails.

​Now, the evaluation of evidence involves consideration of each set of evidence given by the parties, the determination of the credibility of respective witnesses and ascription of probative value to the evidence evaluated. It entails a consideration of the totality of the evidence including documents tendered by the parties – Maiyaki Vs State (2008) 15 NWLR (Pt 1109) 173, Anekwe Vs Nweke (2014) 9 NWLR (Pt 1412) 393, Brown Vs State (2017) 4 NWLR (Pt 1556) 341. In evaluating the evidence led by the parties, a trial Court is enjoined to place the totality of the testimonies of both parties on an imaginary scale. One side of the scale will contain the evidence of the prosecution while the other side will harbor the evidence of the accused. The lower Court must then weigh both together to determine their probative value, and, in doing so, consider whether the evidence led by a party in its totality is relevant, admissible, credible, conclusive and more probable than that adduced by the other party. Once these considerations fall into line, the lower Court must then apply the relevant laws to the facts or evidence adduced, in order to reach a decision – Adamu Vs State (1991) 4 NWLR (Pt 187) 530, Edwin Vs State(2019) 7 NWLR (Pt 1672) 553, Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221,Statoil (Nig) Ltd Vs Inducon (Nig) Ltd ​(2021) 1 NWLR (Pt 1774) 1.
In other words, in evaluating the evidence led by a party, a trial Court does not segment and compartmentalize the pieces of evidence led by the party and consider them in isolation from each other in single units. It is elementary that the contents of the notes of evidence, like the content of any document, must be read and considered in whole, and not in parts in isolation, to get a full picture of the story contained therein – Ogah Vs Ikpeazu (2017) 17 NWLR (Pt 1594) 299, Peoples Democratic Party Vs Oranezi (2018) 7 NWLR (Pt 1618) 245, Ukoh Vs Ukoh (2021) 7 NWLR (Pt 1775) 303. Thus, the approach adopted by Counsel to the Appellant in contending against the evaluation of evidence done by the lower Court was self defeating and totally unproductive. It is either the Counsel was naïve or was being clever by half, trying to create or conjure up a case where none existed.


​Counsel berated the lower Court for giving credence to the Hausa version of the confessional statement of the Appellant, Exhibit A, on the ground that it was not in the language of the Court; Counsel conveniently forgot that the document was accompanied by the English translation of the confessional statement, Exhibit A1. The law is clear, as rightly stated by the Counsel to the Respondent, that what it requires a party tendering a document not in English language to do to give the document credit, is to accompany same with its English translation – Damina Vs The State (1995) 8 NWLR (Pt 415) 513, Ojengbede Vs Esan (2001) 18 NWLR (Pt 746) 771,Oruwari Vs Osler (2013) 5 NWLR (Pt 1348) 535, Zamfara State Religious Preaching & Establishment of Jumaat Mosque Commission Vs Mukaddani (2020) LPELR 52222(CA). 

Counsel also railed against the probative value accorded by the lower Court to the English translation of the confessional statement, Exhibit A1, because according to him it did not repeat the cautionary words administered to the Appellant in English and it was not signed by the Appellant. The document noted on its face that the cautionary words were administered to Appellant in Hausa language before it proceeded to translate the main body of the Hausa version of the confessional statement and it was signed by the Police Officer who carried out the interpretation. The position of the law as settled by the Supreme Court, and as rightly stated by Counsel to the Respondent, is that the non-signing of the translated version of a confessional statement by an accused person is insignificant and does not diminish the credit of the document, once it is signed by the interpreter and it is accompanied by the original version of the confessional statement that was translated. In State Vs Sa’idu (2019) 10 NWLR (Pt 1680) 308, Okoro, JSC, made the point at page 321B-D thus:
“There is no doubt that exhibit 8A, the main statement made in Hausa by the respondent was actually thumb printed by him. There is no quarrel about the statement. However, the grouse of the respondent is that the translated version was not signed by the respondent though signed by the translator… The respondent’s confessional statement, though retracted, was duly signed by him as made in Hausa which he understands. The translated version even if it was read over to him in English language would not have made any meaning to him as he would not have understood same. As far as the translator had signed the translated version, I hold that it does not make any difference that the accused did not sign it.”

In other words, where an accused person volunteers a statement in a language other than the English language, which is the language of the Court, in order to ensure the correctness and accuracy of the statement made by the accused person and to protect his right to fair hearing guaranteed by Section 36(6) of the 1999 Constitution, the statement in the original language in which it was recorded as well as its translation into English must be tendered in Court and the person who recorded the statement in the original language and translated it into English language should be called to testify as to the recording of the statement and its translation – Olanipekun Vs State (2016) 13 NWLR (Pt 1528) 100, Adamu Vs State (2019) 8 NWLR (Pt 1675) 478, Samuel Vs State (2020) 6 NWLR (Pt 1721) 557, Ugwu Vs State (2020) 7 NWLR (Pt 1723) 259. Once these requirements are met by the prosecution, the trial Court will afford credit to the confessional statement. These requirements were met by the Respondent in the instant case in tendering the confessional statement, Exhibits A and A1. Counsel to the Appellant did not contend, either in the lower Court or in this appeal, that the English translation was not a true and correct reflection of the Hausa version of the confessional statement. The lower Court was thus correct in according both the Hausa version and the English version of the confessional statement due credit.

Counsel to the Appellant did not contest in his submissions that the victim of the two offences charged, the second prosecution witness, was not robbed while being threatened with a knife and/or that she was not raped and had carnal knowledge of while under the threat of a knife. The main contention of the Counsel was that it was not the Appellant that robbed and/or had carnal knowledge of the victim against her will. The two versions of the confessional statement of the Appellant, Exhibit A and A1 were tendered by the first prosecution witness, the Investigating Police Officer, and he gave evidence thus:
“Yes, I am the one that recorded the statement of the accused. I could remember on 22/01/2016 at about 8.00 hours, I was commanded by O. C. ASP Kudu Bawa to obtain the statement of the accused Mummuni Tukur under the words of caution, without duress and voluntarily.
The accused stated that on 20/01/2016 at about 0800hours on his way to Illala Village in Kafin Hausa Local Government Area he saw an unknown woman. I recorded the statement of the accused who confessed that he collected the sum of N500.00 from the woman. The accused admitted that at the time of the commission of the offence he was carrying a knife which we recovered. After recording the statement, I took the accused to my superior. The knife was recorded as 09/2016. …” 

The Respondent tendered both the original Hausa version and the English translation of the confessional statements. The Appellant objected to the confessional statement on the ground that he did not make, sign or thumb print the statement. The lower Court admitted the two statements. The Hausa version of the confessional statement, Exhibit A, carried the words of caution with a thumbprint underneath, a thumbprint at the end of the statement, the endorsement of Supol Kudu Bawa and his signature and a thumbprint after the endorsement. The endorsement of Supol Kudu Bawa on the statement read thus:
“On the 22/01/2016 at about 1700hrs, one suspect by name Mumuni Tukur ‘m’ was brought before me by F/No 271529 CPL Salisu Mohammed. His statement was read over to him and he agreed to be the maker and he made the statement out of his own volition, without any threat, duress or promise.”

The first prosecution witness was not cross examined by the Counsel to the Appellant on the making of the statement by the Appellant. By not cross-examining the witness on this point, it meant that the Appellant accepted the truth of the evidence of the witness that the confessional statement was made by him – Esene Vs State (2017) 8 NWLR (Pt 1568) 337, Isah Vs State (2018) 8 NWLR (Pt 1621) 346, Patrick Vs State (2018) 16 NWLR (Pt 1645) 263, Egba Vs State (2019) 15 NWLR (Pt 1695) 201. 

The English translation of the confessional statement read, in part, thus:
“… I am residing at Suga Village in Kirikasamma LG. I could remember on 20-1-16 at about 0800hours I went to Illala Village in order to get food. On reaching the bush I saw one woman. I don’t know her actually. I just grabbed her Hijjab and say ‘ke’ meaning ‘hey’ and knocked her on the ground and climbed her. I asked her to give me money. She refused then I removed a knife of mine and threaten her and saw Five Hundred naira only, I collected it by force. Moreover, I loosed her wrapper and removed my trouser and have sex with her but she did not allow me to finish. I don’t even released but I fucked her really. Then I wore my trouser and showed her a knife again that if she screamed or shout I will slaughter her. I ran to the bush, I didn’t go far I saw some people, I don’t know them, tracing my footprint. I hide myself in livestock where they got me and took me to Suga Village Head. The Village Head handed me over to the Police …”

The second prosecution witness, the victim, testified thus:
“Yes, I know the accused. We met on the road with the accused who came by the East from Suga while I was from Illalah heading to Suga. The accused on meeting held my neck and fell me down, the accused drew a knife, while I was praying the accused then put down the knife, the accused collected N500.00 from me. The accused then brought his penis and inserted same in my vagina. After that the accused left and run away. I then run seeking for help. I then saw some people whom I ask for their help. I showed them the way the accused followed and they went and caught up with the accused. The accused was then taken to Kirisamma Court.”

The witness stated under cross examination that she did not recognize the accused at the time of the incident as the accused had masked his face with a black cover, but she knew that the person who attacked her was short with a mark on his face. The witness stated that she came to recognize the accused in the Palace of the Village Head of Suga and that she had seen the accused before the incident.

The third prosecution witness gave evidence thus:
“… What I know is that while I was on the way I met PW2 in distress looking for help, as the accused had drew a knife with the aim of harming her, we asked where the accused was. She pointed at some bushy area. We looked and saw the accused running. We followed the accused and covering some distance the accused fell into a heap of stalk. We arrested the accused with a knife in his hand, we collected same.”

The fourth prosecution witness testified that:
“… What I saw was the PW2 confused with her wrapper held by her hand she was only covered by her skirt. She asked us to help her. When we stopped she showed us the direction of the accused and saying that the accused is going to kill me. The other person told me that he has some confused mind. Then PW3 arrived on a motorcycle. When the accused saw us numbering four in number he then started to run. We then chased him. On reaching some parked stalk, he then enter to hide himself. We then open and arrested the accused. We asked him to give us the knife in his hand to which the accused obliged and handed same to us. We then brought the accused to the village head. We narrated what we saw to the village head. The PW2 was called who narrated what happened between her and the accused person. The accused was asked and he confirmed what PW2 said.”

The evidence of the third and fourth prosecution witnesses were not challenged, disparaged, and/or discredited under cross examination. The testimonies of the two witnesses identified the Appellant as the assailant of the second prosecution witness and the evidence was not incredible. It is settled law that a Court is obliged to treat unchallenged evidence on a material fact as true, cogent and credible and to act on it, unless the evidence is patently incredible – Olude Vs State (2018) LPELR 44070(SC), Lanre Vs State (2018) LPELR 45156(SC), Onyiorah Vs Onyiorah (2019) 15 NWLR (Pt 1695) 227,Daniel Vs Ayala (2019) LPELR 49344(SC), Ifediora Vs Okafor (2019) LPELR 49518(SC).

​Now, looking at the evidence of the second, third and fourth prosecution witnesses, it is clear that they flowed into each other and told a continuing story of the attack on the second prosecution witness by the Appellant and the apprehension of the Appellant. The testimonies of the three witnesses corroborated both the confessional statement of the Appellant and the oral confession made by the Appellant to the first prosecution witness. A holistic consideration of the entire evidence led by the Respondent leads to the unassailable conclusion that the second prosecution witness was robbed and was raped and had carnal knowledge of while being threatened with a knife and that the Appellant was the assailant of the second prosecution witness. A holistic consideration of the evidence of the witnesses and confessional statement further shows that the discrepancy that Counsel to the Appellant sought to create regarding the place of commission of the offences between Ilalla Village in Kafin Hausa Local Government Area mentioned in the confessional statement and Shuga Bush Village in Kirikasama Local Government Area mentioned in the charge was non-existent, but was contrived by Counsel to cause confusion and to mislead. The evidence showed that the two Villages were neighbouring Villages and that the offences were committed in the bush of Shuga Village.

​The evidence led by the Respondent support the finding of the lower Court that the Respondent led credible and cogent evidence to prove the ingredients of the offences of armed robbery and rape against the Appellant beyond reasonable doubt. Counsel to the Appellant did nothing in this appeal to dislodge this finding of the lower Court. In view of this and contrary to the submission of Counsel to the Appellant, the failure of the Respondent to tender the knife retrieved from the Appellant at the time of his apprehension cannot be fatal in the circumstances of this case – State Vs Oray (2020) 7 NWLR (Pt 1722) 130, Jiya Vs State (2020) 13 NWLR (Pt 1740) 159, Ibrahim Vs Commissioner of Police (2020) 15 NWLR (Pt 1746) 122, Ukpamazi Vs State(2020) 18 NWLR (Pt 1755) 157, Ilyasu Vs State (2021) 1 NWLR (Pt 1756) 1. 

Counsel to the Appellant raised several queries in his arguments in this appeal and which he said that the case of the Respondent did not answer, but these were questions that were available to be asked of the prosecution witnesses to discredit their evidence, and which were not asked. Counsel obviously forgot that the proper stage for discrediting the case of the Respondent and the prosecution witnesses is not in the address of counsel or the brief of argument on appeal but is down the line at the trial Court during cross-examination and possibly a countering evidence to debunk whatever the prosecution witnesses had placed in evidence, but certainly not on appeal, as Counsel sought to do – Balogun Vs Attorney General, Ogun State (2002) 6 NWLR (Pt. 763) 512, Okoro Vs State (2012) 1 SC (Pt. 1) 54,Anyasodor Vs State(2018) 8 NWLR (Pt 1620) 107.

By Section 168(1) of the Evidence Act, a judgment appealed against enjoys presumption of regularity which is rebuttable. Once the appellant fails to satisfactorily establish the error in the judgment appealed against, the respondent is entitled to a judgment affirming the judgment –Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92. In Oyedele Vs State (2019) 6 NWLR (Pt 1667) 74, the Supreme Court made the point thus:
‘There is a presumption that, on facts, the decision of a trial Court is right and that for the appellant to succeed, he must displace the findings of fact against him. Once an appellate Court finds nothing perverse or capable of occasioning miscarriage of justice to the appellant in the judgment of the trial Court on facts, it has nothing else to do than to affirm the judgment.’

The Appellant in this appeal failed to affect the finding of facts made against him by the lower Court and has not shown any miscarriage of justice he suffered in the judgment. This appeal must thus fail.

​In conclusion, this Court finds no merit in the appeal and same is hereby dismissed. The judgment of the High Court of Jigawa State delivered in Suit No JDU/99C/2016 by Honorable Justice Umar M. Sadiq on the 8th of April, 2019, together with the conviction of and sentence passed on the Appellant, are affirmed. These shall be the orders of this Court.

HUSSEIN MUKHTAR, J.C.A.: I have had the advantage of reading, in draft, the judgment just rendered by my learned brother Habeeb Adewale Olumuyiwa Abiru, JCA. I agree with eloquent reasons therein and the conclusion that the appeal is bereft of substance and deserves a downright dismissal. I hereby dismiss same and subscribe to the orders made in the judgment.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have the privilege of reading the draft judgment delivered by my learned brother H.A.O. ABIRU, JCA and I am in complete agreement with the reasoning and conclusion reached therein. I too dismiss this appeal and affirm the conviction and sentence of the appellant. I abide by all other consequential order as contained in lead judgment.

Appearances:

Olukayode Ariwoola Jnr For Appellant(s)

Dr. Musa Aliyu, A. G. Jigawa State with A. H. Hassan, Principal State Counsel, Ministry of Justice, Jigawa State For Respondent(s)