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USMAN v. STATE & ORS (2020)

USMAN v. STATE & ORS

(2020)LCN/15774(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, July 28, 2020

CA/G/71/C/2019

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

ISA USMAN APPELANT(S)

And

1. THE STATE 2. SADIQ HUSSAINI 3. BABAN NANA ABUBAKAR MOHAMMED RESPONDENT(S)

 

RATIO:

THE DEFINITION OF A CONFESSIONAL STATEMENT

A confessional statement can simply be defined as an admission by a person accused of committing a crime anywhere and at anytime, stating or suggesting the inference that he committed the crime – Section 28 of the Evidence Act, 2011. A free and voluntary confession of guilt by an accused person, provided it is direct and positive and it was made voluntarily, is sufficient to ground a conviction since a confession always remains the best proof of what he had done – Fabiyi V State (2015) 6-7 SC (Pt. I) 83; Dogo V State (2013) 2-3 SC (Pt. II) 75, 92-94; Osetola V State (2012) 6 SCNJ 321. JUMMAI HANNATU SANKEY, J.C.A. 

THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT
It is also settled law, of which I am mindful, that before a Court convicts an accused person on his confessional statement alone, it must ascertain whether such a confessional statement was made voluntarily; and also that it was direct, positive, cogent and consistent with other facts proved – Jimoh V State (2014) 10 NWLR (Pt. 1414) 105.
​In addition, the Supreme Court has over the years evolved some procedural requirements which a confessional statement must meet in order to be relied upon by trial Courts. Some of these requirements are: (i) it must contain the words of caution; (ii) the words of caution must have been administered in the language understood by the accused person; (iii) the confessionalstatement must be duly signed/thumb-printed by the accused person; (iv) the statement should be recorded in the language understood by the accused person; and (v) the statement should have been read over and interpreted to its maker in the language in which it was recorded. JUMMAI HANNATU SANKEY, J.C.A. 

THE PROOF BEYOND REASONABLE DOUBT DOES NOT MEAN PROOF BEYOND THE SHADOW OF DOUBT

The starting point to a consideration of these issues must be a reminder that proof beyond reasonable doubt is not intended to be a magic wand for the benefit of an accused person. Instead, the law is that when the prosecution has attained such a degree of proof that leads only to the remote possibility in favour of the accused, the case is proved beyond reasonable doubt. In Miller V Minister of Pensions (1947) All ER 322, 373, Denny, J. (ashe then was), stated that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. Proof beyond reasonable doubt does not mean proof to a mathematical certainty. Were it to be so, then no case could ever be proved – Oyem V FRN (2019) LPELR-47392(SC) 15-16, B-E, per Onnoghen, CJN. JUMMAI HANNATU SANKEY, J.C.A. 

THE EFFECT OF MERE DENIAL OF MAKING OR SIGNING A CONFESSIONAL STATEMENT

The law is settled as it was clearly stated in the Judgment to the effect that mere denial of making or signing a confessional statement by an accused person is not sufficient ground on which to reject it particularly where it was properly tendered. See the cases of AKWUOBI vs. THE STATE 2016 LPELR-SC379/2011 and OKWESI vs. STATE 1995 NWLR 119. ELFRIEDA  OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.A

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This is a sister Appeal to the following two (2) Appeals:
A. Appeal No. CA/G/72/C/2019, between Sadiq Hussaini V (1) The State, (2) Isah Usman and (3) Baban Nana Abubakar Mohammed; and
B. Appeal No. CA/G/11C/2020, between Baban Nana Abubakar Mohammed V The State.

The trio of the Appellant, Sadiq Hussaini and Baban Nana Abubakar Mohammed were charged before the High Court of Gombe State in Case No. GM/14C/2017 for the same offences in respect of the same incident. They were tried together before the same Court, represented by the same Counsel and, at the end of the trial, they were found guilty and sentenced to death. Dissatisfied with the Judgment, the accused persons filed separate Appeals to this Court with identical grounds of Appeal. The Records of Appeal transmitted to this Court for the Appeals are the same. In addition, the issues crafted for determination by the parties are virtually the same, as well as the submissions of learned Counsel on both sides except for a few subtle differences in respect for the individuals. The differences in the two Appealslie mainly in the names of the parties, the respective Appeal numbers and the fact that the confessional statements of the Appellant, Exhibits E, E1, H and H1 in this Appeal, are Exhibits A, B, F and F1 and Exhibits A1, B1, G and G1 in the other two sister-Appeal.

This Appeal is against the Judgment of the High Court of Justice of Gombe State delivered on November 2, 2018 by Pindiga, J., wherein the Appellant was convicted on a three-count charge of criminal conspiracy contrary to Section 97 of the Penal Code, culpable homicide punishable with death contrary to Section 221 of the Penal Code and Armed Robbery punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended). As a result, he was sentenced to death by hanging.

The facts leading to the Appeal are briefly as follows:
By an Amended Charge dated June 30, 2017, the Appellant was charged along with the 2nd and 3rd Respondents with three counts of offences as follows:
1) Criminal conspiracy to commit armed robbery and culpable homicide punishable with death contrary to Section 5(b) and punishable under Section 1(2)(b) of the Robbery and  Firearms Special Provisions Act, 1990 (as amended) and Section 97 of the Penal Code;
2) Culpable homicide punishable with death contrary to Section 221 of the Penal Code; and
3) Armed Robbery punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended).

The substance of the allegations in the charge against the Appellant was that on June 24, 2016, the Appellant, alongside the co-accused persons conspired together and, while armed with knives and cutlasses, robbed one Tijjani Mohammed of his Samsung handset and money to the tune of N1,800.00. They also stabbed him on his chest and stomach which ultimately led to his death. Upon being arraigned in Court, the Appellant pleaded not guilty to the charge. The case proceeded to trial and in proof of the charge, the prosecution adduced evidence through seven (7) witnesses and thirteen (13) Exhibits. Some of the exhibits which were considered crucial are the medical report – Exhibit C, the Hausa confessional statements of the Appellant and their English translations made at the Pantami Police Division and subsequently at the Gombe State CID NPF – Exhibits E,E1, H and H1. In his defence, the Appellant and the co-accused persons testified for themselves and the Appellant’s brother testified for him as DW4.

On November 2, 2018, the learned trial Judge delivered Judgment in the case wherein he found the Appellant and the co-accused persons guilty of the offences as charged, and convicted and sentenced them to death by hanging. Dissatisfied with this decision, the Appellant filed his Notice of Appeal on January 21, 2019 wherein he complained on 13 grounds.

At the hearing of the Appeal on June 23, 2020, Adedayo Adesina Esq., adopted the Appellant’s Brief of argument filed on 21-10-19, deemed filed on 02-06-20 and settled by Adedayo Adesina, Esq., in urging the Court to allow the Appeal. On his part, Abdussalam Muhammad Esq., Acting DPP with the Ministry of Justice, Gombe State adopted the 1st Respondent’s Brief of argument filed on 17-06-20 and settled by him, Abdussalam Muhammad Esq., in urging the Court to dismiss the Appeal. Both learned Counsel made brief submissions in adumbration of their respective Briefs of argument as contained in the Record of this Court.

The Appellant in his Brief of argument distilled the following three issues for determination from his thirteen grounds of Appeal:
(i) “Whether the lower Court was right to have convicted the Appellant for the three counts of offences viz: (i) Criminal Conspiracy to Commit Armed Robbery and Culpable Homicide punishable with death contrary to Section 5(b) and punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended) and Section 97 of the Penal Code; (ii) Culpable Homicide punishable with death contrary to Section 221 of the Penal Code; and (iii) Armed Robbery punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended) based on the retracted confessional statements of the Appellant. (Grounds 1, 2, 4, 7, 9 and 11)
(ii) Whether having regards to the totality of the evidence placed before the trial Court and the position of the law, the 1st Respondent proved beyond reasonable doubt all the offences for which the Appellant was convicted by the lower Court. (Grounds 3, 5, 6, 10 and 12)
(iii) Whether the failure of the lower Court to properly evaluate the evidence adduced by the 1st Respondent (Prosecution) and the Appellant in his defence and make clear findings on same occasioned a miscarriage of justice against the Appellant. (Grounds 8 and 13)”

For the 1st Respondent, two issues were framed for determination as follows:
1. “Whether the trial Court was right to hold that the respondent has proved its case of conspiracy, armed robbery and culpable homicide punishable with death based on the evidence adduced by the prosecution and whether there was proper evaluation of evidence by the trial Court before Judgment. (Grounds 3, 5, 6, 8, 10, 12 and 13)
2. Whether the trial Court was right in according probative evidential value on the retracted confessional statements of the Appellant in its Judgment. (Grounds 1, 2, 4, 7, 9 and 11)”

Even though the 2nd and 3rd Respondents to the Appeal were duly served with all the processes of Court, inclusive of the respective Briefs of argument of the Appellant and the 1st Respondent, did not file any Brief of argument in response. They did not therefore contest the Appeal. It is however noted that they filed their separate Appeals against the Judgment which were heard simultaneously.

Of the two sets of issues submitted for determination by the parties, I adopt the issues framed by the Appellant, much as they a tad bit verbose. However, they essentially capture the issues arising from the Appellant’s complaints in his 13 Grounds of appeal. Issue 2 of the 1st Respondent comes within the ambit of issue 1 of the Appellant; while the 1st Respondent’s issue 1 fits snugly into the Appellant’s issues 2 and 3. I therefore adopt them in considering and resolving the Appeal. However, they shall be addressed in this order: issue one shall be taken first and alone, while issues two and three shall be taken together.

ARGUMENTS
Issue one – Whether the lower Court was right to have convicted the Appellant for the three counts of offences viz: (i) Criminal Conspiracy to Commit Armed Robbery and Culpable Homicide punishable with death contrary to Section 5(b) and punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended) and Section 97 of the Penal Code; (ii) Culpable Homicide punishable with death contrary to Section 221 of the Penal Code; and (iii) Armed Robbery punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended) based on the retracted confessional statements of the Appellant. (Emphasis supplied)

The crux of the submission of learned Counsel for the Appellant under this issue is that, whereas the learned trial Judge relied on only the confessional statements of the Appellant, Exhibits E, E1, H and H1, to convict the Appellant of the offences charged, the statements were retracted and their veracity was not tested in line with the decisions of the Court in Edhigere V State (1996) 8 NWLR (Pt. 464) 1, 10; Ogudo V State (2011) 18 NWLR (Pt. 1278) 1, 26; and Okoh V State (2014) 8 NWLR (Pt. 1410) 502, 526.

Counsel contends that the confessional statements were worthless because the copies served on him along with the proofs of evidence before trial were unsigned; whereas those tendered and admitted in evidence as Exhibits E, E1, H and H1 were duly signed. Counsel therefore submits that the doubts created around the veracity and reliability of these confessional statements should be resolved in the Appellant’s favour because it was unsafe forthe lower Court to have ascribed weight and probative value to the statements and convicted him placing reliance on them – Omega Bank (Nig.) Plc V OBC Ltd (2005) 8 NWLR (Pt. 928) 547, 577; & Ogudo V State (supra) 30; Nweze V State (2017) LPELR-42344(SC).

Counsel also takes up issues with the fact that the confessional statements were recorded and translated by the the same Police officer, PW5. He contends that this violated the constitutional right to fair hearing of the Appellant – Queen V Nnana Okoro (1960) NSCC 93, 94; State V Eze (1972) 2 ECSLR (Pt. 2) 7, per Araka, J. Consequently, he urged the Court to expunge the confessional statements or in the alternative, not to attach any probative weight to them.

In response, learned Counsel for the 1st Respondent refers to pages 167-168 of the printed Record for the evaluation of evidence by the trial Judge, which is the primary function of a trial Court which has seen, observed and heard the witnesses and was at liberty to believe or disbelieve them – Afolalu V State (2012) Vol 10 LRCNCC 30, 40.

Secondly, Counsel submits that a free and voluntary confession alone is sufficient to ground a conviction without further corroboration so long as the Court is satisfied with the truth of the confession. The fact that the Appellant retracted his confessional statement does not mean that the Court cannot act on it to convict him – Gabriel V State (2011) 6 NWLR (Pt. 1190) 280, 290; Osung V State (2011) 11 SCM 176, 178.

On the contention that the trial Court did not properly evaluate the evidence, Counsel submits that the Judgment of the trial Court comprised all the constituents of a Judgment. And since every Judge has his own style of Judgment writing, this cannot be an issue which can vitiate the trial – Ogba V Onwuzo (2005) 14 NWLR (Pt. 945) 331, 334-335.

Counsel further submits that no doubt has been created around the veracity, accuracy, reliability and correctness of the confessional statements of the Appellant, Exhibits E, E1, H and H1. Instead, the statements were voluntary, positive, direct and unequivocal, sufficient to sustain a conviction. While agreeing that Exhibits E and E1 were retracted by the Appellant at the point of tendering, he submits that Exhibits H and H1 were never retracted but were admitted without objection. He also submits that that even though a Judge can safely convict on the Appellant’s confession alone, in this case the confessional statement was amply corroborated by independent pieces of evidence, especially the cause of death as stated in the medical report, Exhibit C.

On the issue of the alleged absence of the Appellant’s signature on copies of the confessional statements which were served on the Appellant along with the proofs of evidence before his arraignment, Counsel submits that it was the signed originals which were tendered and admitted in evidence; and thus no issue was raised by the Appellant or his Counsel in this regard at the point of tendering. Therefore, the Respondent having made available to the Appellant all the proofs of evidence before his arraignment to prepare for his trial in line with Section 36(6) (b) of the 1999 Constitution, the Appellant cannot now complain that he was denied fair hearing.

On the issue of the translation of the confessional statements by an alleged interpreter who did not testify, Counsel submits that the statements were recorded and translated by the same officer, PW5, and it was tendered through her. A separate interpreter was not used for this purpose. And this procedure did not contravene the principle of fair hearing enshrined in Section 36(1) of the Constitution (supra).

RESOLUTION OF ISSUE ONE
In considering this issue, I have given close attention to the competing submissions of both learned Counsel and the authorities relied upon and referred to. Before addressing the specific issues raised, it is pertinent to state the baseline on the manner of proof of criminal cases in a Court of law.
There are three modes of proof of criminal cases and they are as follows: (a) by the testimonies of eyewitnesses who witnessed the commission of the crime(s) by the accused person(s), which is referred to as direct proof; (b) through the confessional statement(s) voluntarily made by the accused person(s); and (c) through circumstantial evidence, which clearly points to the fact that the accused person, and no other, committed the offence, i.e. indirect proof – Emeka V State (2001) 6 SCNJ 267.

A confessional statement can simply be defined as an admission by a person accused of committing a crime anywhere and at anytime, stating or suggesting the inference that he committed the crime – Section 28 of the Evidence Act, 2011. A free and voluntary confession of guilt by an accused person, provided it is direct and positive and it was made voluntarily, is sufficient to ground a conviction since a confession always remains the best proof of what he had done – Fabiyi V State (2015) 6-7 SC (Pt. I) 83; Dogo V State (2013) 2-3 SC (Pt. II) 75, 92-94; Osetola V State (2012) 6 SCNJ 321.

It is also settled law, of which I am mindful, that before a Court convicts an accused person on his confessional statement alone, it must ascertain whether such a confessional statement was made voluntarily; and also that it was direct, positive, cogent and consistent with other facts proved – Jimoh V State (2014) 10 NWLR (Pt. 1414) 105.
​In addition, the Supreme Court has over the years evolved some procedural requirements which a confessional statement must meet in order to be relied upon by trial Courts. Some of these requirements are: (i) it must contain the words of caution; (ii) the words of caution must have been administered in the language understood by the accused person; (iii) the confessional statement must be duly signed/thumb-printed by the accused person; (iv) the statement should be recorded in the language understood by the accused person; and (v) the statement should have been read over and interpreted to its maker in the language in which it was recorded.

In the instant case, the complaint of the Appellant is that the trial Court convicted him on his confessional statements, Exhibits E, E1, H and H1, which were unsigned and also retracted in Court. According to him, the trial Court relied solely on these confessional statements to convict him of the three offences of criminal conspiracy, culpable homicide punishable with death and armed robbery. In the first place, it must be emphasized that the confession of an accused person to the commission of an offence plays a vital role in the determination of his guilt. Therefore, a trial Court is empowered to convict an accused person on his confessional statement alone once it is convinced that the confession was voluntary.

In the instant case, the initial confessional statements of the Appellant and the 2nd and 3rd accused persons made at Pantami Division Gombe State Police Command were tendered through PW5, the first Investigating Police Officer (IPO) Cpl. Isa Salestina. Even though Counsel for the Appellant and the other two accused persons denied that the accused persons made the statements, they were rightly received in evidence as Exhibits E, E1, F, F1 and G, G1 respectively, as there was no challenge to their voluntariness and no question to their relevance to the proceedings (page 102 of the Record). The documents were certainly both relevant and admissible in evidence and they could therefore be acted upon by the trial Court without reservation. What was left was the weight to be attached to the documents at the close of trial. As an addendum, it is equally the law that even if the process of admission of such statements was irregular (which is not the case in the instant Appeal), where no objection is raised at the point of tendering, it would be taken to have been waived and cannot be made the subject of a complaint on appeal.

After the investigations at Pantami Division of the Police Command, the case was transferred to the State CID Gombe State Command NPF. PW7, Cpl. Habu Usman, the second Investigating Police Officer (IPO),was assigned to investigate and receive the statement of the Appellant in respect of the allegations against him. Page 108 of the Record discloses that he diligently went through the laid down process for receiving a statement from a person accused of criminal offences. When the prosecution applied to tender the statement which was confessional in nature in evidence, Counsel for the Appellant had no reservations whatsoever and so it was admitted in evidence as Exhibits H and H1 (pages 108-109 of the Record).

In his first confessional statement made at Pantami Police Division, Exhibits E and E1, the Appellant, duly signed the words of caution after being cautioned in Hausa, the language which he understands, about his rights to either make a statement or not in respect of the allegations. Thereafter, he volunteered his statement, again in Hausa language, which was recorded by PW5 and later translated into English language by the same officer. In this confessional statement, the Appellant freely admitted his criminal responsibility with regard to his agreement and the plan hatched with the co-accused persons, including two others at large. He also admitted his participation in the physical aspects of the offences of armed robbery and culpable homicide, forming the actus reus, to wit: the attack and stabbing of the deceased with knives and cutlasses; as well as the intention behind his action forming the mens rea, to wit: the decision to kill the deceased since he and the other co-conspirators had recognized him as one “Yaya Tijjani” and therefore were afraid that he could identify them – Okeke V State (2003) 15 NWLR (Pt. 842)25. For ease of reference, the relevant portions of this confessional statement in Exhibit E (the Hausa statement) and Exhibit E1 (its English translation) are reproduced hereunder:
“… On 24/6/2016 at about 2100 hours, myself, Sadiq Husseini aka melotso, Bappa, Baban Nana and Bayee, we were going from Bolori to Pantemi quarters. On reaching Salim Chinie at one corner we met Mallam Tijjani. We then flashed touch (sic) light on his face, it was Baban Nana and Sadiq that flashed him, then I and Sadiq told the rest that we know him, and that Bayee then attacked him asking for his handset, from there the said Bayee then stabbed him with knife on his ribs, we collected his Samsung handset and his money cash sum of N1,800.00k. The said Tijjani then started shouting for thieves, he ran to the main road, but we followed him and stabbed him again since we know him he may expose us that is why we want to kill him. The money we collected, we share N300 N300 among ourselves, while the handset we left it with Baban Nana, that when the case is calm we will still sell it and share the money. After two days, I heard that the said Tijjani is dead and it was because of what we did to him that resulted to his dead. Yes I know to conspire and collect someone property is an offence and I know to kill somebody is not good is an offence. I have committed the offence I was even presen (sic) during his burial. I did that because I don’t have money.”

Again in his second confessional statement, Exhibits H and H1, which he made when he was transferred to the State CID Gombe State Command NPF, the Appellant again restated his nefarious role in the incident inter alia as follows:
“… I and my friends namely (1) Sadiq Husseini (2) Bappa (3) Baban Nana (4) Baiye whom their father’s name unknown to me all‘m’ of Pantami, Gabukka and Bolari quarters Gombe, while we are sitting at along Layin Dibino at Baise house Bolari quarters Gombe we conspired among ourselves and organised that we should go and attacked people and collect their phone (GSM) and their belongings. On our way we pass along Bolari football field. We met with one Mallam Tijjani ‘m’ of the same address standing with one young lady, I don’t know her name. We stopped him and then one Sadiq Husseni among us flashed him with a touch (sic) light on his face. I then told them that I know him it was Mallam Tijjani and Sadiq Husseini too said that he knows him too. Then one Baiye among us used the knife (illegible) and stabbed him on his chest and his stomach and Baban Nana used his cutlass and stabbed him on his head. The Baban Nana collect his handset (GSM) Samsong (sic) black colour and a sum of one thousand eight hundred naira (1,800) only and Mallam Tijjani run along the main road. We then run and escaped. I run to one of my friend at Kundullum quarters to my friend Ado house where I stay for two (2) day (sic). Later I had (sic) that Mallam Tijjani was dead. I then go andtold my friends that Mallam Tijjani was dead. They told me that they will run. I then told them even they run and escaped, they will be arrested. We should better reported ourselves. I then came to our house later two (2) days I was arrested by Committee group of our Ward members. Then they took me to Pantami Division. I stayed two (2) later we are transferred to SCIID headquarters Gombe.”

It is significant that at the point of tendering this second statement in evidence, no manner of objection was raised by Counsel (page 95 of the Record). It was only in respect of the first statement which was made upon his arrest at the Pantami Police Division, Exhibits E and E1, that the Appellant denied making the statement (page 102 of the Record). Notwithstanding this, the law is settled that the mere retraction of a voluntary confessional statement by an accused person, as in the instant case, neither renders the confessional statement inadmissible or worthless or untrue, in relation to his guilt – Idowu V State (2000) 7 SC (Pt. II) 50; Silas V State (1996) 1 NWLR 59.

On the issue of corroborative evidence, contrary to the submission of Counsel for theAppellant, the learned trial Judge did not convict the Appellant solely on his confessional statements. From the printed Record of the trial Court, the learned trial Judge took pains to examine other pieces of evidence offered by the prosecution with a view to determining if the confessional statements were true, notwithstanding that they were direct, positive and unequivocal.

In this regard, the trial Judge made several references to the evidence of PW1, Rashida Saleh, the young lady who was with the deceased on the fateful night, and was also attacked along with him by the Appellant and his co-assailants. In her evidence, she graphically described in considerable detail how she and the deceased were attacked with knives and cutlasses, dispossessed of their possessions and even went on to recount the conversation among the assailants conveying the decision to kill the deceased for fear that he had recognized them. PW1 was honest enough to say that she was unable to identify any of their attackers because they flashed their torchlight in her eyes. Since this is eyewitness testimony, I will reproduce a few relevant portions of it for ease of reference.

At pages 84-85 of the Record, she testified as follows:
“On the 24 day of June, 2016, I was sent to take food to my Aunty’s house. I then called my fiancee by flashing we then talked, then he came and we meet (sic)… we greeted… then came five young men, they then were about to pass us but came back and flashed us with their torchlight, then asked us to bring money and our phones. He did not argue he removed and gave it to them, they also collected my own. I don’t know how much they collected from him. As they were about to go they came back and one of them said it is our elder brother Yaya Tijjani he recognize us so we should stab him. They told one “A chaka a chaka masa wuka” he then stabbed him. I did not see their faces when they were stabbing him because it was only moonlight and they flashed our eyes so that we cannot recognize them. After they stabbed him they left.”

Again, the learned trial Judge considered the statement of complaint made to the Police by the deceased himself soon after the attack, Exhibit D. Therein, the deceased described the vicious attack on him and PW1 on the night of 24-06-16by the assailants with lethal weapons and how they dispossessed him of his Samsung Galaxy handset and the sum of N1,800.00. The relevant portions of the said statement are set out hereunder as follows:
“Today 24/6/2016 at about 2100hrs, I was standing on the road near Dr. Ishaya Clinic, unknown person(s) suddenly came in that same road, they were many. One of them then asked for my handset and I gave them the handset is Samsung Galaxy valued N27,000.00k and they also collected my money cash N1,800.00k. After giving them the property one among them stabbed me with knife on my ribs. Immediately they left. I don’t have problem with anybody. I can’t recognize them.”

PW5, the first IPO at Pantami Division, in her evidence, corroborated the report lodged by the deceased, his condition and how she rushed him to the hospital where he subsequently died on 26-06-16.

The trial Judge also referred to and relied upon the medical evidence presented by the prosecution in the form of the medical report, Exhibit C, wherein the medical doctor who examined the corpse, PW4 – Dr. Bello Abdulshaheed Aminu, described the injuries, stab wounds, etc, which were consistent with the other pieces of evidence contained in the confessional statements, the evidence of PW1 and the statement of the deceased, himself, Exhibit D. Again, the contents of Exhibit D are reproduced as follows:
“The above named patient was admitted into the Emergency room on 25th June, 2016 with stab wound to the left hypochondrium, and was managed as a case of penetrating abdominal injury with Splenic injury and hemoperitoneum.
The patient was being planned for emergency exploratory laparatomy, but he ceased breathing and was declared clinically dead at 2:05am on 26th July, 2016.”

One last important factor considered by the trial Judge was the uncontroverted evidence adduced by the other prosecution witnesses of how the Appellant and his co-travelers fled the scene of crime, as well as the town, and went into hiding until they were fished out by the vigilantes who handed them over to the Police.

By a combination of all the above facts, the learned trial Judge was convinced that the confessional statements of the Appellant, Exhibits E, E1, H and H1, were true and that they served as adequate corroboration sufficient upon which to base a conviction. I cannot fault this. Nonetheless, I must reiterate that even without corroboration (which was found in abundance in the instant case), a confessional statement which is made voluntarily and is direct, cogent, credible and positive, is enough to ground a conviction even without corroboration of any sort. That is the law – Kamila V State (2018) 18, per Amiru Sanusi, JSC; Akinfe V State (1988) 7 SCNJ (Pt. II) 226; Yahaya V State (1986) 12 SC 282, 290.

On the quality of the evidence of the investigating Police officers (IPOs), PW3, PW5 and PW7, which the Appellant has asked us to disregard as hearsay, I must say that contrary to Counsel’s submission, investigating police officers narrate to the Court the nature of their investigations and the outcome of such investigations as well as items recovered, if any, and any evidence discovered and their observations during the course of such investigations. In addition, investigators give narrations of when and how accused persons made their extra-judicial statements to the Police, confessional or otherwise, and the circumstances thereof. Thus, it is incumbent upon trial Courts to take into consideration such vital pieces of evidence discovered in the course of investigations in order to arrive at a just decision, one way or the other – Kamila V State (supra) 22-23, D-A.

What the evidence before the trial Court discloses is that the Appellant, after having been arrested and confronted with the allegations, confessed to having committed the offences at the earliest opportunity. It is significant also that Counsel did not at all cross-examine the two IPOs from Pantami Police Division and the State CID Headquarters Gombe, i.e. PW5 and PW7 respectively, on the allegations of torture and non-signing of the statements later made by the Appellant when he testified as DW1 in his defence. In his defence, the Appellant alleged that the statements were not voluntary, that he did not make them and that he also did not sign them. The law is that where an accused person has failed to raise an objection to the tendering of evidence during trial, he cannot raise that objection on Appeal – Oyem V FRN (2019) LPELR-47392(SC) 25, A, per Okoro, JSC.

It has also been contended by Counsel that the learned trial Judgeshould not have acted on these free and voluntary confessions made twice by the Appellant, first at the Pantami Police Division and secondly at the State CID Command Gombe, just because he subsequently retracted them while testifying in his defence. The general principle of law is that an accused can be convicted solely on his confessional statement without corroboration once it is satisfied of the truth of the confession – Blessing V FRN (2015) LPELR-24689(SC) per Ogunbiyi, JSC. When a confession is made, an accused person is hook, line and sinker admitting to all the ingredients of the offence(s) he has confessed to, and in the course of this, he usually reveals other facts which the prosecution and the world may not even know in respect of the crime, except for the culprit. This is more so where the confessional statement is unequivocal, clear and voluntary without any evidence of interference to taint it, such as threat, violence, etc. Thus, it follows that a confessional statement is the best, most direct and potent weapon in the hand of the prosecution against an accused person upon which a trial Court can legitimately act – Oyem V FRN (2019)LPELR-47392(SC) 12-13, A-C, per Abba-Aji, JSC.
Additionally, it is the settled position of law that a confessional statement is the best form of evidence. A confession binds the maker and is sufficient to ground a conviction once it is unequivocal and believed by the Court to be true – Oyem V FRN (2019) 24, D-F, & 25, A, per Okoro, JSC; Igri V State (2012) 16 NWLR (Pt. 1327) 522, 532; Okewu V FRN (2012) 9 NWLR (Pt. 1305) 327, 352; Amanchukwu V FRN (2009) 8 NWLR (Pt. 1144) 475.
Thus, the principle of law is that an accused person who retracts his confessional statement may still be convicted of the offence(s) charged if the confessional statement is direct, positive and unequivocal, and there is some evidence outside the confession, no matter how little, which tends to show that the confession is true – Kamila V State (2018) LPELR-43603(SC) 40, D-E, per MD Muhammad, JSC. Therefore, with or without the testimonies of PW1 (the eyewitness), and the six (6) other prosecution witnesses, the trial Court was right to convict the Appellant based on his unequivocal confessional statements, notwithstanding its latter day retraction. Thus, based on all the above, I answer issue one in the affirmative and resolve it against the Appellant.
Issues two and three taken together:
Issue two – Whether having regards to the totality of the evidence placed before the trial Court and the position of the law, the 1st Respondent proved beyond reasonable doubt all the offences for which the Appellant was convicted by the lower Court.
Issue three – Whether the failure of the lower Court to properly evaluate the evidence adduced by the 1st Respondent (Prosecution) and the Appellant in his defence and make clear findings on same occasioned a miscarriage of justice against the Appellant.

Under issue two, Counsel submits that the 1st Respondent failed to discharge the burden placed on it to prove the offences charged beyond reasonable doubt. In respect of count one for the offence of criminal conspiracy to commit armed robbery and culpable homicide Counsel submits that the trial Court relied solely on the retracted confessional statements of the Appellant to convict him. He therefore adopted his arguments offered under issue one above and submits that the confessional statements, Exhibits E, E1, H and H1 were unreliable, equivocal, indirect and doubtful, and so no weight should have been attached to them. He contends that the trial Court drew an inference of conspiracy from the confessional statements without testing their veracity or analyzing the details of the facts proved by applying the six steps laid down in R V Sykes (1913) 8 CAR 233 is fatal to the conviction of the Appellant – Bako V State (2018) LPELR-44479(CA).

On count two of the charge, which is culpable homicide punishable with death, Counsel again submits that the trial Judge relied solely on the confessional statements to convict the Appellant, while attempting to find corroborative evidence outside the confessional statements. Yet in the same breath, he contends that the evidence relied upon as corroborative evidence does not qualify as such because the evidence of PW2, PW3, PW4, PW5, PW6 and PW7 was all hearsay as they were not at the scene of crime – Uwa V State (2015) 4 NWLR (Pt. 1450) 438, 471-472.

With regard to the evidence of the PW1, the only eyewitness to the crimes, Counsel submits that she did not identify the Appellant as the assailant who stabbed and killed the deceased,thus her evidence does not qualify as independent evidence connecting the Appellant with the offences charged – Adeleye V State (2015) 3 NWLR (Pt. 1446) 229, 247, 249; State V Gwangwan (2015) 13 NWLR (Pt. 1477) 600, 626.

On count three of the charge for armed robbery, Counsel submits that the trial Court again only relied on the retracted confessional statements of the Appellant to convict him. He therefore relied and adopted his earlier submissions to submit that the said confessional statements were unreliable, equivocal, indirect and doubtful and so no weight should have been attached to them. In addition, that the trial Court failed to look for other independent evidence outside the confessional statements to corroborate them.

Furthermore, while conceding that the first two ingredients of the offence of armed robbery were proved, i.e. that there was a robbery and that it was carried out with the use of offensive weapons, Counsel submits that the prosecution failed to prove the third ingredient which was that the accused person, now Appellant, participated in the robbery. For this, he relied on Exhibit D, the statement of the deceased, as wellas the evidence of PW1, the sole eyewitness, both of who stated that they could not identify their attackers. He contends that the evidence of PW2 to PW7 was all hearsay as they were not eyewitnesses. Counsel relies on Alor V State (1997) 4 NWLR (Pt. 505) 511 to submit that in criminal cases, convictions can only be based on legal proof and not on suspicion or speculation. Thus, that the trial Court was in error when it grounded the conviction of the Appellant solely on Exhibits E, E1, H and H1 without corroboration. He urged the Court to resolve issue two in favour of the Appellant.

In respect of issue three, Counsel submits that the lower Court failed to evaluate the evidence adduced by the Appellant and to make clear findings. He contends that contrary to the finding of the trial Court, the Appellant retracted his confessional statements during his evidence as DW1 and also at the point when they were being tendered in evidence.

Counsel submits that the failure of the trial Court to therefore properly evaluate the evidence of the Appellant constitutes a denial and breach of the right to fair hearing of the Appellant, and this has occasioned a miscarriage of justice – Karibo V Grend (1992) 3 NWLR (Pt. 230) 426; Morenikeji V Adegbosin (2003) 8 WLR (Pt. 823) 612; Kalio V Woluchem (1985) 1 NWLR (Pt. 4) 610, 622.

Counsel also submits that this failure has rendered his conviction unreasonable, unwarranted and it cannot be supported by the evidence placed before the trial Court. He therefore urged the Court to hold that the findings of the trial Court were perverse, have occasioned a miscarriage of justice and so to resolve issue three in favour of the Appellant. In conclusion, Counsel urged the Court to allow the Appeal, quash the conviction of the Appellant and acquit him of the offences convicted.

In response, learned Counsel for the Respondent submits that the prosecution adduced ample evidence to prove the offences of conspiracy, armed robbery and culpable homicide charged against the Appellant. On count one, he referred to the confessional statements of the Appellant, Exhibits E, E1, H and H1 as well as the confessional statement of the 3rd accused person (Baban Nana) Exhibits A1 and B1. He contends that the statements corroborated each other in establishing a meeting of minds. Also that the subsequent acts of the Appellants and his co-accused persons in actually attacking the victims, robbing them of their phones and stabbing the deceased to death provided evidence upon which conspiracy can be inferred. Such evidence of common intention renders all the accused persons culpable for the offence of conspiracy – Sule V State (2009) 7 LRCNCC 1.

In respect of count two for the offence of armed robbery, Counsel submits that the prosecution adduced sufficient evidence through PW1, PW5 and PW6 to show that on June 24, 2016, Tijjani Mohammed (the deceased) and Rashida Saleh (PW1) were robbed, and this evidence corroborates the Appellant’s confessional statements, Exhibits E, E1, H and H1. Again, the evidence from PW1, PW5, PW6 and PW4 in conjunction with Exhibits E, E1, H and H1 proves that the robbery was carried out with weapons/arms in the form of knives, cutlasses and a torchlight. On the participation of the Appellant in the armed robbery, Counsel relies on the contents of his confessional statements, Exhibits E, E1, H and H1 which were direct, positive and unequivocal pointing to the guilt of the Appellant – FRN V Iweka (2013) 3 NWLR(Pt. 1341) 285; Ikemson V State (1989) 3 NWLR (Pt. 110) 455.

For the conviction of the Appellant for culpable homicide, Counsel submits that all three ingredients of the offence were proved. On the first ingredient which is that the death of a human being took place, he relied on the evidence of PW1, PW3, PW4 which corroborates Exhibits E, E1, H and H1 wherein the Appellant admits to attending the funeral of the deceased, Tijjani Mohammed. In proof of the second ingredient, that the death was caused by the Appellant, again reliance was placed on the evidence of PW1, PW2, PW6 and Exhibits E, E1, H and H1 which established that the Appellant and the co-accused persons attacked the deceased and stabbed him on his chest and stomach which ultimately led to his death. On the third ingredient, which is that the Appellant carried out the acts with the intention to cause death or he knew that death would be the probable result, Counsel relied on the surrounding circumstances of the attack such as the nature of the weapon used, being deadly and lethal weapons, the part of the body stabbed, i.e. the chest and abdomen being delicate parts of the body, the degree offorce applied or the injuries sustained, which was deep and wide, and the proximity of the victim to the lethal weapon used – Iden V state (1994) 8 NWLR (Pt. 365) 719; Ejeka V State (2003) 7 NWLR (Pt. 819) 408.

Counsel also submits there was no doubt as to the identity of the Appellant based on the evidence of PW1, PW2, PW5, PW6 and the Appellant’s confessional statements, Exhibits E, E1, H and H1. Counsel finally submits that the finding of the trial Court that the 1st Respondent proved the three-count charge was right based on the evidence adduced before it. He therefore urged the Court to dismiss the Appeal and affirm the conviction and sentence of the Appellant.

RESOLUTION OF ISSUES TWO AND THREE
The starting point to a consideration of these issues must be a reminder that proof beyond reasonable doubt is not intended to be a magic wand for the benefit of an accused person. Instead, the law is that when the prosecution has attained such a degree of proof that leads only to the remote possibility in favour of the accused, the case is proved beyond reasonable doubt. In Miller V Minister of Pensions (1947) All ER 322, 373, Denny, J. (as he then was), stated that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. Proof beyond reasonable doubt does not mean proof to a mathematical certainty. Were it to be so, then no case could ever be proved – Oyem V FRN (2019) LPELR-47392(SC) 15-16, B-E, per Onnoghen, CJN.

In the instant case, by a combination of the evidence of (1) PW1, the only eyewitness who gave in riveting detail an account of the attack on her and the deceased by five young men; (2) the report/statement of the deceased himself (Exhibit D) made to the first Police IPO (PW5) before he died, wherein he gave details of the attack in writing, which report may actually serve as a dying declaration but for the fact that he did not identify his attackers; (3) the confessional statements of the Appellant, Exhibits E, E1, H and H1; (4) as well as those of the 2nd and 3rd accused persons which corroborated the evidence of PW1 in every material particular; (5) the medical report, Exhibit D, and evidence of PW3 (the medical Doctor) who authored the report, which further corroborated the manner and cause of death of the deceased; and (6) in conjunction with the evidence of the other witnesses (PW2 and PW6) and the Police investigators (IPOs) PW3, PW5 and PW7, a water-tight case was made out against the Appellant and his cohorts by the prosecution. Thus, the learned trial Judge acted rightly in relying on the retracted confessional statements amply corroborated by the above pieces of evidence to convict the Appellant as charged.

Furthermore, as has been well articulated by the 1st Respondent in his submissions, the evidence of conspiracy to commit armed robbery and culpable homicide in count one of the charge, can be found in the confessional statements of the Appellant and the 2nd and 3rd accused persons, i.e. Exhibits A1, B1 E, E1, H and H1 wherein they all confessed to how they planned and agreed to carry out the armed robbery.

In furtherance of this agreement, the Appellant, 1st and 2nd accused persons and others still at large activated their plan and carried out the attack on the hapless and defenceless duo of the deceased, Tijjani Saleh, and his girlfriend, PW1, on the roadside where they stood waiting for public transport at night.

From the confessional statements of the accused persons, inclusive of those of the Appellant, amply corroborated by the evidence in Court of PW1 and Exhibit D, (the statement of the deceased) speaking, as it were, from beyond the grave, they flashed their torchlight into the eyes of their victims which prevented the accused persons from being identified, and proceeded to attack them with lethal weapons. In addition, they collected the Samsung Galaxy handset of the deceased, the Tecno handset of PW1 as well as the sum of N1,800.00 cash. Still not satiated, they proceeded to stab him in the chest and abdomen with knives and slashed his head and leg with cutlasses, all aimed at killing him so that he would not identify him as his assailants because, from their own confessional statements, they themselves had recognized him as one Yaya Tijjani from their neighbourhood and they were afraid that he could also identify them. However, it is ironic and a cruel twist of fate that from the written complaint/statement of the deceased lodged at the Pantami Police Station before he died, he had not in fact recognized any of his attackers and so was unable to tell the Police their identities when he was asked by PW5, the IPO. The Appellant and the co-accused persons therefore viciously snuffed out the life of the deceased unnecessarily even after inflicting grievous injuries on him and forcefully dispossessing him of his property.

In the same vein, the PW1 who was with the deceased during the brutal attack, honestly testified that she had not been able to identify any of the attackers due to the flashlight which they shone in her face. However, it was the Appellant, 2nd and 3rd accused persons in their own confessional statements who gave graphic accounts of their actions on the fateful night, which accounts were eerily in tandem and aligned in all material particulars with the accounts of the attack given by their victims, i.e. the deceased and PW1. This therefore established the truth and veracity of both the confessions as well as the evidence of the prosecution witnesses.

​From the nature and character of the evidence adduced by the prosecution, the learned trial Judge properly evaluated the evidence and ascribed probative value thereto at pages 128-179 of the printed Record, but specifically at pages 171 to 178 thereof. Thus, contrary to the contention of the Appellant, the learned trial Judge, far from relying solely on the confessional statements of the Appellant, which he was entitled to do since they were direct, positive, cogent and unequivocal, the learned trial Judge found ample corroboration in other pieces of evidence presented to the Court in view of the fact that they were subsequently retracted by the Appellant in his defence. His Lordship of the trial Court identified and enumerated such corroborative evidence as being found in the evidence of PW1 (eyewitness) and PW7, who was present when the 2nd accused confessed to the crime and identified his co-conspirators, (page 177); as well as the evidence of PW3, PW4, PW5 and PW7, the investigating Police officers to whom the confessional statements were made (page 176 of the Record), PW4 – the medical doctor who certified the deceased dead and issued the medical report – Exhibit C, and the evidence of PW6, the brother of the deceased who was with him until he died two days after the attack.

Thus, based on the mammoth evidence adduced by the prosecution as opposed to the lame and weak evidence adduced by the Appellant in his defence as DW1, which evidence comprised mainly of a mere denial and retraction of the confessional statements, the learned trial Judge acted rightly in my humble view, in his findings and conclusion that the prosecution proved the three-count charge against the Appellant to the standard required by law, beyond reasonable doubt. Based on all the above, I am satisfied that, contrary to the contention of the Appellant, the learned trial Judge properly evaluated the evidence presented to the Court and came to a correct conclusion. I therefore decline the Appellant’s invitation to interfere with these findings. For these reasons, I resolve issues two and three against the Appellant.

Having resolved all three issues against the Appellant, I find the Appeal sorely lacking in merit. It fails and is dismissed.
Accordingly, I affirm the Judgment of the High Court of Justice, Gombe State in Case No. GM/14C/2017 between The State V (1) Isah Usman, (2) Sadiq Hussaini and (3) Baban Nana Abubakar Mohammed, delivered on November 2, 2018 by Pindiga, J., as well as the conviction and sentence of death.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege and opportunity to read in draft the lead Judgment of my learned brother, JUMMAI HANNATU SANKEY, JCA and I agree with the reasoning and conclusion reached therein.

The law is settled as it was clearly stated in the Judgment to the effect that mere denial of making or signing a confessional statement by an accused person is not sufficient ground on which to reject it particularly where it was properly tendered. See the cases of AKWUOBI vs. THE STATE 2016 LPELR-SC379/2011 and OKWESI vs. STATE 1995 NWLR 119.

A free and voluntary confession of guilt by an accused person, if direct and positive, duly made and satisfactorily proved before the trial Court, alone, is sufficient to warrant a conviction as in the instant appeal. There was also no objection whatsoever at the time of tendering the statements.
​As was clearly found in this appeal, the Court below took cognizance of the corroborative evidence of the PW1, PW4, PW5, the complaint of the deceased himself immediately after the attack, Exhibit D and the medical report of the medical doctor who attended to him, Exhibit C, admitted without objection as sufficient corroboration which the Court needed to warrant a conviction.

For the fuller reasons clearly put in the lead Judgment, I also dismiss the appeal and affirm the Judgment of the High Court of Justice, Gombe State in Case No. GM/14C/2017 between The State vs. (1) Isah Usman, (2) Sadiq Hussaini and (3) Baban Nana Abubakar Mohammed, delivered on November 2, 2018 by Pindiga J., as well as the conviction and sentence of death.

JAMES GAMBO ABUNDAGA, J.C.A: I have had the advantage of reading the draft of the Judgment delivered by my learned brother, JummaiHannatu Sankey, JCA.

I adopt the reasoning and conclusion reached therein that the appeal is lacking in merit, and thus fails and is hereby dismissed.

However, to reiterate my agreement with the conclusion reached in the Judgment, I will make a few remarks on the following prominent issues in the appeal.

​The contention of the Appellant’s Counsel that the learned trial Judge was in error in acting on the Confessional Statement of the Appellant in convicting him does not reflect the facts and evidence adduced at the trial and the settled position of the law on the role ofConfessional Statement in a criminal trial.
A Confessional Statement is an admission by an accused person that he committed the crime of which he is alleged to have committed or suggesting the inference that he committed the crime. See Section 28 of the Evidence Act, 2011. The Supreme Court in the case of IfeanyichukwuAkwuobi vs. The State (2016) LPELR-41389 (SC) held:
“It is trite law and already settled that a free and voluntary confession of guilt by an accused person, if direct and positive, duly made and satisfactorily proved before the trial Court is alone sufficient to warrant a conviction even if there is no corroborative evidence. Therefore, a conviction based on such a Confessional Statement will not be quashed on appeal, merely because it is based entirely on the evidence of confession by the Appellant. What is important is that the Court must be satisfied with the facts and circumstances in which the confession was made. See R. V. Ajayi Omakaro (1941) 146, Anthony Ejinima vs. The State (1991) 6 NWLR (Pt. 200) 627, (1991) 7 SCNJ 318 (1991) 7 SC (Pt. 11) 1.” per Ariwoola, JSC (pp. 39 – 40, paras F – D).

In this case, the trial Judge did not convict the Appellant solely on his Confessional Statements. Notwithstanding that the Confessional Statements were direct, positive and unequivocal, the trial Judge took pains to examine other pieces of evidence produced by the prosecution, with a view to ascertaining that the Confession was indeed made. The prosecution evidence examined by the trial Judge include the evidence of PW1, Rashida Saleh who was with the deceased and was also attacked along with him by the Appellant and his co-assailants. In her evidence, she narrated to the Court how they were attacked with knives and cutlasses, and dispossessed of their properties. She was however honest enough to state that she could not identify any of the attackers because they flashed their torchlight in her eyes. The trial Judge also considered the statement of the deceased (complainant) made to the police soon after the attack as contained in Exhibit “D”. Also considered is the evidence of the first IPO (PW5) and the medical report. Indeed, there was abundant evidence outside the Confessional Statements to establish the guilt of the Appellant beyond reasonable doubt.

Apart from the foregoing issue which his Lordship considered in scintillating details, his Lordship’s Judgment is also laced with articulate discourse of other arguments canvassed by Appellant’s Counsel culminating in the resolution of same against the Appellant that cannot be faulted.
I totally endorse those resolutions.
In consequence, I too find no merit in this appeal and dismiss it.

Therefore, the Judgment of the trial Court delivered by his Lordship Pindiga, J., on 2nd November, 2018 as well as the conviction and sentence of death is hereby affirmed.

Appearances:

Adedayo Adesina Esq. with him T.J.J. Danjuma Esq.For Appellant(s)

Abdussalam Muhammad Esq., Ag. Director Public Prosecutions, appears for the 1st Respondent, with him Hafsat Aliyu Esq., Principal State Counsel and A.M. Hassan Esq., Principal State Counsel.For Respondent(s)