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YUNUSA v. STATE (2021)

YUNUSA v. STATE

(2021)LCN/15909(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, November 11, 2021

CA/ABJ/CR/1120/2020

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

DANJUMA YUNUSA APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO:

CONVICTION BY THE COURT BASED ON A CONFESSIONAL STATEMENT EVEN WHERE RETRACTED

The law is settled that the Court can convict on a confessional statement, even where such confession is retracted. In other words, the fact that an accused person has retracted his confessional statement does not mean that the Court cannot act upon it to convict; See Lukmon Osetola & Anor v. The State (2010) LPELR – 4803 (CA); Hassan v. The State (2001) 15 NWLR (pt.745) p.184; Nwachukwu v. The State (2007) 17 NWLR (pt.1062) p.31; Akpan v. State (2001) 15 NWLR (pt.737) p.745; Fatai Busari v. The State (2015) LPELR – 24270 (SC).

TESTING OR VERIFYING THE TRUTH OF A RETRACTED CONFESSIONAL STATEMENT BEFORE CONVICTION

Having said that, before the Court can convict on such retracted statement, the Court is enjoined to test or verify the truth of the confession with other evidence outside the confession; see Achabua v. State (1976) N.S.C.C. p.74; Yesufu v. State (1976) 6 S.C. p.167; Uluebeka v. The State (2000) 7 NWLR (pt.665) p.404; Asanya v. State 3 NWLR (pt.180) p.422; Kareem v. State (2002) FWLR (pt.125) p.796 at 810; The State v. James Gwangwan (2015) LPELR – 24837 (SC) and Ubierho v. The State (2005) 5 NWLR (pt.919) p.644.
The purpose of applying the tests as laid down is rather to determine the truth of the facts stated in the confession, so as to enable the trial Court determine the probative value of the statement which the prosecution allege to be confessional. The principles that will guide the Court in evaluating the confessional statement were set out in SHURUMO V. THE STATE (2010) 16 NWLR (PT.1218) P.65 AT 119 PARAGRAPHS E – G as follows: (a) Whether there is anything outside the confession to show that it is true; (b) Whether the statement is corroborated; (c) Whether the confession was consistent with other facts which have been ascertained and proved at the trial; (d) Whether the accused person had the opportunity of committing the offence; (e) Whether the confession is possible; and (f) Whether the facts stated in the confessional statement so far as can be tested true.

THE SATISFACTION OF THE COURT OF THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT

Once the trial Court is satisfied that the confession was voluntarily obtained, the conviction does not have to depend on any further corroborative statement. This is more so, as the trial within trial was not challenged at any point in time, not even before this Court and that being so, the argument that the appellant did not make the confessional statement cannot be entertained further; see KAMILA V STATE (2018) LPELR-43603-SC.

IT IS THE QUALITY AND NOT QUANTITY OF EVIDENCE THAT DETERMINES THE SUCCESS OF THE PROSECUTION IN ESTABLISHING A CASE

Failure to call a witness cannot in the circumstances of this case be equated to withholding evidence; because it is the prosecution’s case to make or mar, and once the prosecution is satisfied that sufficient evidence is presented to the Court to elicit a conviction, then there is little or no need for an overkill by calling an array of witnesses. Sufficient is indeed enough to all intents and purposes, and Exhibit P5, the confession is sufficient in this case.
The credibility of evidence does not ordinarily depend on the number of witnesses that testify on a particular point; so the contention that the prosecution failed to call the police informant counts for little. The question is whether the evidence of one credible witness, on a particular point is believed and accepted. If the answer is in the affirmative, then it is sufficient to support a conviction; See Ali v. The State (1988) 1 NWLR (Pt. 68) 1. It is not the quantity but the quality of the evidence that determines the success of the prosecution in establishing a case; ABOGEDE V. STATE (1996) 37 LRCN 674 @ 677.

That the law has to be applied by the Police and all government agencies while recording extra-judicial statements of every suspect to vouchsafe the authenticity of the statement; Nnajiofor v. FRN (2019) 2 NWLR part 1655 page 157; that before the enactment of the ACJA 2015 and the Kogi State ACJL, 2017 there was no binding law regarding making and taking of statements by and from suspects, though there is the judge’s rule to guide the police and other law enforcement officers requiring that confessional statements and the accused be taken to a superior Police officer by the junior officer taking it; OWHORUKE V COP (2015) 15 NWLR part 1483 page 557; HASSAN V STATE (2017) 5 NWLR part 1557 page 1.

While the legislature does not intend what is unjust, the Courts also abhor giving statutes retrospective operation. Statutes are therefore construed as operating only in cases or on facts which come into existence after the statutes were passed, unless a retrospective effect is clearly intended. It is a fundamental rule of law that although it is competent for the legislature to make retrospective laws, no statute should be construed to have a retrospective operation unless the terms of the statute say so in clear and unequivocal language; see AFOLABI V. GOVERNOR, OYO STATE (1985) 2 NWLR (PT.9) 734 AT 752-753.
 
In my considered view, the learned trial Judge did properly evaluate the evidence before him, properly construed same in the context of the charge, the basic ingredients required by law to be proved on same, upon the criteria provided in Section 135 of the Evidence Act (supra). The learned trial Judge’s ascription of full probative value on the Appellant’s confessional statement is clearly sequel to a full trial within trial on it which the Appellant has neither faulted nor questioned in this appeal. In this circumstance, this Court will not be inclined to disturb the findings and decisions of the Court below.
See Adebayo vs. A.G. Ogun State LPELR – SC.186/2006; Haruna vs. AG Federation (2012) LPELR – SC.72/2010. BATURE ISAH GAFAI, J.C.A.

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kogi State, holden at Ankpa, presided by Honorable Justice A.N. Awalu, delivered on the 17th of November, 2020; wherein the Appellant, and one other were charged and convicted of the offences of criminal conspiracy and armed robbery, contrary to Sections 97(1) and 298 (c) of the Penal Code respectively.

Facts in Brief:
On the 5th of July, 2018 the appellant, who a t trial was the 1st defendant pleaded not guilty to the two-count charge of criminal conspiracy and armed robbery contrary to Sections 97(1) and 298 (c) of the Penal Code; see page 19 of the record of appeal.

The appellant made two extra-judicial statements, the first was made on the 18th of December, 2017, and admitted as exhibit P3, while the second was made on the 24th of December, 2017 and admitted as exhibit P5; see page 35 to 40 of the record.

The prosecution called two witnesses and tendered six exhibits, at the end of trial, the appellant was convicted. Dissatisfied, the appellant appealed by a notice of appeal filed on the 8th of December, 2020 on seven grounds as follows:
GROUNDS OF APPEAL
GROUND ONE:
The right of fair hearing of the Appellant as provided by Section 36 (1), (3), (4), (5) and (6)(a), (b), (c), (d) and (e) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) was grossly breached by the trial Court thereby occasioning a serious miscarriage of justice to the Appellant herein.
GROUND TWO:
The trial Court erred when it relied on the inadmissible and uncorroborated P5 solely to convict and sentence the Appellant herein thereby occasioning a miscarriage of justice to the Appellant.
GROUND THREE:
The trial Court erred held when it this:
It is clear to me that the authors of the statements gave graphic accounts of their planning and travel to the scene of crime where (sic) armed with a gun, they dispossessed a Fulani man of his motorcycle. The confession in both statements is direct and positive. And I hold that the confessions to the offences of conspiracy and armed robbery punishable under Sections 97(1) and 298(c) respectively of the Penal Code beyond reasonable doubt. I therefore convict both Defendants for the offences as charged.

GROUND FOUR:
The trial Court erred in Law when it held that the Prosecution/Respondent had proved the essential ingredients of 1st and 2nd counts of charge, i.e. offences of criminal conspiracy and Armed Robbery against the Appellant beyond reasonable doubt as subsumed under Sections 97(1) and 298(c) of the Penal Code.
GROUND FIVE:
There were irreconcilable contradictions in the evidence of the witnesses called by the Prosecution/Respondent which were fatal/substantial to the case of the Prosecution/Respondent.
GROUND SIX:
The Judgment of the trial Court is unsupportable, unreasonable, unwarranted and unmeritorious in view of the evidence on the printed Record.

From these grounds the following issues were formulated on behalf of the Appellant:
ISSUES FOR DETERMINATION
ISSUE ONE:
Whether the learned trial Judge was right when he found/held that the prosecution/Respondent had proved the ingredients of the two counts charge of criminal conspiracy and Armed Robbery against the Appellant beyond reasonable doubt (Distilled from grounds three and four of the Notice of Appeal)
ISSUE TWO:
Whether in view of the unambiguous provisions of Section 28(1) and (2) of the Kogi State Administration of Criminal Justice Law, 2017 and Sections 15 and 17 of Administration of Criminal Justice Act, 2015, the purported extra-judicial statement (Exhibits P5) are admissible or have any probative value? (Distilled from Ground Two of the Notice of the Appeal).
ISSUE THREE:
Whether the failure of the trial Court to properly evaluate and attach probative value to the evidence of the Appellant occasioned a miscarriage of Justice to the Appellant. (Distilled from Grounds five and six of the Notice of Appeal).

The issues formulated on behalf of the Appellant were adopted by the Respondent; Issues one and three will be taken together:
ISSUE ONE:
Whether the learned trial judge was right when he found/held that the prosecution/respondent had proved the ingredients of the two counts charge of criminal conspiracy and armed robbery against the appellant beyond reasonable doubt (grounds three and four).
ISSUE THREE:
Whether the failure of the trial Court to properly evaluate and attach probative value to the evidence of the appellant occasioned a miscarriage of justice to the appellant (grounds five and six).

It is submitted for the appellant that the prosecution failed to prove the ingredients of the two-count charges against the appellant beyond reasonable doubt; as no one came to the Court to say he or she was robbed, or that it was the appellant that robbed them while armed, nor was the appellant arrested at the scene; and that none of the two witnesses was the victim of the armed robbery nor were they the ones who arrested the appellant. There was no direct oral evidence by or from the prosecution witnesses to establish any of the essential elements of armed robbery against the appellant.

That failure to produce victims of the armed robbery, Abubakar Mohammed, who was available but not called, as well as the vigilante member who arrested the appellant, amounts to withholding unfavorable evidence; Section 167(d) of the Evidence Act, 2011 and OGUDO V STATE (2011) LPELR-SC 341/2010 and AL-HASSANI V STATE (2011) 3 NWLR part 1234 page 254.

That failure to prove even one of the ingredients of the offence beyond reasonable doubt is fatal to the case of the prosecution; FAMAKINWA V STATE (2016) 11 NWLR part 1524 page 538 and ALAKE V STATE (1992) 9 NWLR part 265 page 260.

That before convicting on a retracted extra-judicial statement, such a statement must be corroborated with some independent evidence, and not hearsay evidence; and where there is no corroborative evidence, the appellant should be given the benefit of doubt in line with Section 36(5) of the Constitution, as the appellant is not expected to prove his innocence; BELLO V COP (2018) 2 NWLR part 1603 page 267; OGUDO V STATE supra; SHEHU V STATE (2010) 8 NWLR part 1195 page 112 and SULEIMAN V STATE (2009) part 1164 page 258.

That also contrary to the findings of the trial Court, Exhibit P3, the evidence on oath of the appellant was not called alongside the evidence of the vigilante member that arrested the appellant, thus raising the issue of withholding evidence; Section 167 of the Evidence Act, 2011; as a consequence, placing the burden of proof on the appellant to prove his innocence; IGBIKIS V STATE (2017) 11 NWLR part 1575 page 126.

That PWs1 and 2 were neither the victims of the crime nor the vigilante member that arrested the appellant, therefore their evidence and what Abubakar Mohammed told them are hearsay evidence; OKORO V STATE (1998) 14 NWLR part 584 page 181 OZUDE V IGP (1965) 1 All NLR 102.

It is submitted in response that the trial Court, contrary to the submission of learned counsel to the appellant, convicted not only on the confessional statement but also pieces of evidence outside the confession; ANYASODOR V STATE (2018) LPELR-43720-SC.

That the appellant was convicted on account of his confessional statement, Exhibit P5, which was admitted in evidence after the conduct of a trial within trial, so it is wrong for the appellant to claim that the confession was retracted.

That also, the appellant was convicted of conspiracy because it was established that he conspired with another, STATE V SALAWU (2011) LPELR-8252-SC and MUSA V STATE (2018) LPELR-43846-SC; and that the law recognizes that an accused person can safely be convicted solely on his confessional statement with or without corroborative evidence, where the trial Court is convinced that same was given voluntarily.

That the trial within trial was not challenged in any way, and so Exhibit P5 was voluntarily made; KAMILA V STATE (2018) LPELR-43603-SC.

It is further submitted that on the 2nd charge of armed robbery PWs 1 and 2 clearly established the existence of robbery on the 17th of December, 2017, as well as PWs 5 and 6; and also that contrary to the contention of learned counsel for the appellant, exhibit P1 was not rejected by the trial Court.

That also, once an accused person is established to be in the company of another who was in possession of a lethal weapon at the time of committing the offence, the accused who was not armed will nevertheless be guilty of the same offence as the armed fellow; UMOR V STATE (2018) LPELR-4434-CA.

That from the confessions of the appellant in Exhibit 5, the prosecution established the ingredients of the charge of armed robbery and that the question of withholding evidence does not arise because calling of witnesses by the prosecution is discretionary; ODUNEYE V STATE (2001) LPERL-2245-SC and EZE V STATE (2018) LPELR-43715-SC.

That from the record of appeal, proceedings of the 25th of September, 2018, at pages 20 to 21 of the record, one of the witnesses, Abdulazeez Juli, was shot dead; OSAREREN V FRN (2018) LPELR-43839-SC.

The evidence of PWs 1 and 2 are testimonies of what they actually did during the investigation of the crime, and therefore not hearsay; OLAOYE V STATE (2018) LPELR-43601-SC; and that the burden was never on the appellant to establish his innocence as argued because the trial Court was aware of where the burden lies.

RESOLUTION OF ISSUES 1 AND 3:
The law is settled that the Court can convict on a confessional statement, even where such confession is retracted. In other words, the fact that an accused person has retracted his confessional statement does not mean that the Court cannot act upon it to convict; See Lukmon Osetola & Anor v. The State (2010) LPELR – 4803 (CA); Hassan v. The State (2001) 15 NWLR (pt.745) p.184; Nwachukwu v. The State (2007) 17 NWLR (pt.1062) p.31; Akpan v. State (2001) 15 NWLR (pt.737) p.745; Fatai Busari v. The State (2015) LPELR – 24270 (SC).

Having said that, before the Court can convict on such retracted statement, the Court is enjoined to test or verify the truth of the confession with other evidence outside the confession; see Achabua v. State (1976) N.S.C.C. p.74; Yesufu v. State (1976) 6 S.C. p.167; Uluebeka v. The State (2000) 7 NWLR (pt.665) p.404; Asanya v. State 3 NWLR (pt.180) p.422; Kareem v. State (2002) FWLR (pt.125) p.796 at 810; The State v. James Gwangwan (2015) LPELR – 24837 (SC) and Ubierho v. The State (2005) 5 NWLR (pt.919) p.644.
The purpose of applying the tests as laid down is rather to determine the truth of the facts stated in the confession, so as to enable the trial Court determine the probative value of the statement which the prosecution allege to be confessional. The principles that will guide the Court in evaluating the confessional statement were set out in SHURUMO V. THE STATE (2010) 16 NWLR (PT.1218) P.65 AT 119 PARAGRAPHS E – G as follows: (a) Whether there is anything outside the confession to show that it is true; (b) Whether the statement is corroborated; (c) Whether the confession was consistent with other facts which have been ascertained and proved at the trial; (d) Whether the accused person had the opportunity of committing the offence; (e) Whether the confession is possible; and (f) Whether the facts stated in the confessional statement so far as can be tested true.

This principle has been applied by the Supreme Court and this Court in several cases such as AKPA V. STATE (2007) 2 NWLR (PT.1019) P.500; NWACHUKWU V. THE STATE (2007) ALL FWLR (PT.421) P.540; LASISI V. THE STATE (2013) LPELR – 20183 (SC); OKUNADE KOLAWOLE V. THE STATE (2015) LPELR – 24400 (SC) AND OBISI V. CHIEF OF NAVAL STAFF (2002) 2 NWLR (PT.751) P.400.

The contention that the prosecution ought to have called the victim to give further oral account of what happened to establish the guilt of the appellant is needless in the circumstances, because exhibit P5, the confessional statement was admitted in evidence after a trial within trial was conducted and a ruling delivered. Thus satisfying the Court that the confession was made voluntarily in accordance with the dictates of the law; see pages 31 to 40 of the record of appeal.

Once the trial Court is satisfied that the confession was voluntarily obtained, the conviction does not have to depend on any further corroborative statement. This is more so, as the trial within trial was not challenged at any point in time, not even before this Court and that being so, the argument that the appellant did not make the confessional statement cannot be entertained further; see KAMILA V STATE (2018) LPELR-43603-SC.

Exhibit P5, the confessional statement of the appellant is detailed in itself. It gives extraordinary account of the events leading up to the crime alleged and the crime itself. Details only a participant can know, and therefore convincing; see page 66 of the record of appeal. This informed the finding by the trial Court that:
“It is clear to me that the authors of the statement gave graphic accounts of their planning and travel to the scene of crime, where armed with gun, they disposed a Fulani man of his motorcycle. The confession in both statements are direct and positive.”

The trial Court cannot be faulted for relying on the confessional statement in finding the appellant guilty as charged on both counts of conspiracy and armed robbery. The commission of robbery in this case was not in doubt, this much is clear from Exhibits P1 and P2, the statements of Abubakar Mohammed and Abduazeez Juli, which narrated the incident; see pages 70 to 72 of the record of appeal. Exhibits 5, the confessional statement of the appellant and that of his co-defendant, P6, further settled the issue. In view of these, it is clear that the prosecution established the commission of robbery beyond doubt, contrary to the contention of learned counsel for the appellant.

It is very important to also note that, contrary to the submission of learned counsel for the appellant, it is immaterial that neither PWs 1 or 2 was the victim or the person that arrested the appellant as it is contended, because for the purpose of the charges of conspiracy and armed robbery for which the appellant was charged and found guilty, once it was established that the appellant was in the company of another person, who was in possession of a lethal weapon at the time of committing the crime, the appellant, regardless of whether he was himself armed or not, will not be less guilty of the offence committed for which he was charged, because in the eyes of the law he might as well be armed; see UMOR V STATE (2018) LPELR-44934-CA.

Failure to call a witness cannot in the circumstances of this case be equated to withholding evidence; because it is the prosecution’s case to make or mar, and once the prosecution is satisfied that sufficient evidence is presented to the Court to elicit a conviction, then there is little or no need for an overkill by calling an array of witnesses. Sufficient is indeed enough to all intents and purposes, and Exhibit P5, the confession is sufficient in this case.
The credibility of evidence does not ordinarily depend on the number of witnesses that testify on a particular point; so the contention that the prosecution failed to call the police informant counts for little. The question is whether the evidence of one credible witness, on a particular point is believed and accepted. If the answer is in the affirmative, then it is sufficient to support a conviction; See Ali v. The State (1988) 1 NWLR (Pt. 68) 1. It is not the quantity but the quality of the evidence that determines the success of the prosecution in establishing a case; ABOGEDE V. STATE (1996) 37 LRCN 674 at 677.

Furthermore, it is most uncharitable to refer to the evidence of PWs 1 and 2 as hearsay, because it is clear from pages 23 to 26 of the record of appeal that PW1 gave a detailed account of his investigation, from the moment he received the complaint to the taking of the statement of the appellant, his recovery of two motorcycles, one of which belonged to the appellant and his transfer of the case to criminal investigation department. Pages 27 to 32 of the record of appeal on the other hand, chronicle the investigation conducted by PW2. These two witnesses gave evidence of their direct respective roles; see OLAOYE V STATE (2018) LPELR- SC, where it was held that:
“…it is erroneous for the appellant to posit that the evidence of PW3 should be discountenanced for being hearsay… since PW3 is the investigative police officer who has to narrate to the Court what transpired in the course of his investigation. In this process of stating what he found out in carrying out his inquiries, would be pieces of evidence which with another witness would be considered hearsay but from him, since the Court has to know the synopsis of his instigative journey, it is direct evidence.”

It has to be said that the trial Court’s evaluation of the evidence before him is impeccable. He clearly reviewed the evidence led both oral and documentary, submissions of learned counsel and concluded with why he preferred the evidence of the prosecution to that of the defence; see pages 54 to 63 of the record of appeal.

It is for these reasons that I now resolve issues 1 and three in favour of the respondent, against the appellant.

ISSUE TWO:
Whether in view of the unambiguous provisions of Section 2 (1) and (2) of the Kogi State Administration of Criminal Justice Law, 2017 and Sections 15 and 17 of Administration of Criminal Justice Act, 2015, the purported extra-judicial statement (exhibit P5) is admissible or have any probative value (ground two).
It is submitted for the appellant that exhibit P5 is not admissible in law and lacks probative value, regardless of whether the appellant’s counsel objected to its admissibility or not, in view of Section 28 (1) and (2) Kogi State Administration of Justice Law, 2017;CHARLES V FRN (2018) 13 NWLR part 1635 page 50.

That the law has to be applied by the Police and all government agencies while recording extra-judicial statements of every suspect to vouchsafe the authenticity of the statement; Nnajiofor v. FRN (2019) 2 NWLR part 1655 page 157; that before the enactment of the ACJA 2015 and the Kogi State ACJL, 2017 there was no binding law regarding making and taking of statements by and from suspects, though there is the judge’s rule to guide the police and other law enforcement officers requiring that confessional statements and the accused be taken to a superior Police officer by the junior officer taking it; OWHORUKE V COP (2015) 15 NWLR part 1483 page 557; HASSAN V STATE (2017) 5 NWLR part 1557 page 1.

It is submitted in response that before the promulgation of ACJA 2015 and ACJL 2017, the law regulating the recording of extra-judicial statements of defendants is Criminal Procedure (Statement to Police Officers) Rules of 1960; SUBERU V STATE (2010) LPELR- 3120 SC; and that ACJA 2015 does not cover the trial of the appellant before and after the enactment; see Section 2(1) of the ACJA, 2015 and 493.

That Section 28(1) and (2) of the Kogi State Administration of Justice Law, 2017 can only apply to events or cause of action which come into existence after the statute was enacted; ZUBAIR V KOLAWOLE (2019) LPELR-46928.

That the law in force before the ACJL 2017 is the Criminal Procedure Code, in accordance with which Exhibit P5 was taken on the 24th of December, 2017, while the Kogi State Administration of Criminal Justice Law 2017 was passed into law on the 28th of December, 2017; with four days interval between the recording of Exhibit P5 and coming into effect of ACJL, 2017.

RESOLUTION:
It is very important to bear in mind, while resolving this issue, that the Kogi State Administration of Justice Law, 2017, was passed into law on the 28th of December, 2017, see Section 1; and exhibit P5 was recorded in accordance with the law in force, i.e. the Criminal Procedure Code and the Statement to Police Officers, Rules, 1960, before the coming into effect of the ACJL on the 24th of December, 2017.

This clearly means that Exhibit P5 was recorded at a time when Section 28(1) and (2) of the ACJL, 2017 were not operational and on coming into effect, the Act did not apply retrospectively, see Section 1 of the ACJL, 2017.

While the legislature does not intend what is unjust, the Courts also abhor giving statutes retrospective operation. Statutes are therefore construed as operating only in cases or on facts which come into existence after the statutes were passed, unless a retrospective effect is clearly intended. It is a fundamental rule of law that although it is competent for the legislature to make retrospective laws, no statute should be construed to have a retrospective operation unless the terms of the statute say so in clear and unequivocal language; see AFOLABI V. GOVERNOR, OYO STATE (1985) 2 NWLR (PT.9) 734 AT 752-753.

Section 479(2) of the Kogi State Administration of Justice Law, 2017 states in clear and unambiguous terms that:
“Nothing in this law shall affect the validity of any charge, information, complaint or proceeding initiated or commenced under any law in force as the proceeding was initiated or commenced before this law came into force.”

It is for these reasons that I now resolve this issue in favour of the Respondent, against the Appellant.

Having resolved all the three issues for determination in favour of the Respondent, against the Appellant, the appeal fails for lack of merit and it is accordingly dismissed. Judgment of the trial Court is hereby affirmed.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Mohammed Mustapha, J.C.A.

I agree that the appeal is devoid of any merit and, for the comprehensive reasons advanced by my learned brother, I also dismiss this appeal and affirm the judgment of the trial Court.

BATURE ISAH GAFAI, J.C.A.: I have had the opportunity of reading before now, the draft Judgment just delivered by my learned brother Mustapha, J.C.A. I am in full agreement with his reasonings and decisions on this appeal.

If I may emphasize, it seems to me too that the lifeline of this appeal is mainly in the Appellant’s first and third Issues for determination, reproduced earlier in the lead Judgment; because these Issues represent what the entire trial at the lower Court entailed and the real grievance of the Appellant on it. This is perhaps the reason why my learned brother treated both Issues together in great detail in the lead Judgment. As argued in his Brief, the Appellant’s main complaint under the first Issue is on whether the trial Court was right when it held that the Respondent proved its case against him beyond reasonable doubt. In my humble view, this Issue is essentially rooted in the provisions of Section 135 of the Evidence Act, 2011 which provides that:
“135(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.
2. The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of Section 139, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
3. If the Prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the Defendant.”
​As can be seen from these provisions, the burden to prove the allegations in the charge rests on the shoulders of the Prosecution; which duty it must also discharge beyond reasonable doubt.

While the Appellant argues that the Respondent failed to discharge that duty and the Court below wrongly held it did, the Respondent contends in the contrary. Both have relied on the evidence in the case; in the same manner as they both did in their final addresses before the Court below. The learned trial Judge examined the entire evidence and at the end, found that the Prosecution had proved the charge. The Appellant disagreed.
The duty of this Court here is to examine if the Court below did properly evaluate the evidence before it before arriving at its ultimate finding against the Appellant. See Jov vs. Dom (1999) LPELR-SC.100/1993; Omoregbe vs. Edo (1971) 1 All NLR 282 @ 289.

I have studied the evidence of both sides, I have also read the detailed analysis of same by the learned trial Judge. I have read the provisions of Sections 97(1) and 298(c) of the Penal Code. I have carefully construed the Appellant’s Grounds 3 to 6 in his Notice of Appeal as well as the arguments on same under the first and third Issues.

I have examined the evaluation of the evidence in the case as done by the Court below, more particularly on the Appellant’s confessional statement (exhibit P5) in the context of the Appellant’s complaint against the Court below on it.

In my considered view, the learned trial Judge did properly evaluate the evidence before him, properly construed same in the context of the charge, the basic ingredients required by law to be proved on same, upon the criteria provided in Section 135 of the Evidence Act (supra). The learned trial Judge’s ascription of full probative value on the Appellant’s confessional statement is clearly sequel to a full trial within trial on it which the Appellant has neither faulted nor questioned in this appeal. In this circumstance, this Court will not be inclined to disturb the findings and decisions of the Court below.
See Adebayo vs. A.G. Ogun State LPELR – SC.186/2006; Haruna vs. AG Federation (2012) LPELR – SC.72/2010.

In consequence, I too find this appeal unmeritorious and is dismissed by me also.

Appearances:

L. N. Ilobuno, Esq. For Appellant(s)

S. A. Abbas, Esq. For Respondent(s)